FACULTY OF LAW AND INTERNATIONAL RELATION

CRIMINAL LAW II
(LLS 3123)

ASSIGNMENT TEST

PREPARED BY:
NURUL FATIN AMIRAH BT ABD WAHAB
(030812)


Ahmad Najib Bin Aris v Public Prosecutor

Facts of the case
The appellant was convicted of rape and murder of Canny Ong Lay Kian ('the
victim') and was sentenced to 20 years imprisonment and whipping of 10 strokes for
the rape, and to death for the murder. He appealed against the convictions and
sentences to the Court of Appeal. At the appeal, counsel contended, inter alia: (i)
that the High Court had erred in finding a confession made by the appellant to a
magistrate under s 115 of the Criminal Procedure Code voluntarily made and for
admitting it thereof, and (ii) that certain DNA profiling documents produced by a
computer were not admissible because there was absent a certificate such as
specified by section 90A (2) of the Evidence Act 1950.

Issue
Whether circumstantial evidence established sexual intercourse was without free
consent of the victim.

Principles
Criminal Law Penal Code sec 375 Rape

Held
The circumstantial evidence when considered in its entirely led only to one
conclusion that it was the appellant, and no one else, who was responsible for what
happened to the victim. It was impossible to entertain any doubt that the sexual
intercourse was without the free consent of the victim. The conviction for the charge
of rape was therefore right.

Gan Kim Seang v Public Prosecutor

Facts of the case
There were four charges imposed against the accused in Muar Sessions
Court which is two main charges (rape) and two alternative charges (outrage
modesty). During trial, the accused was convicted with two main charges and was
sentenced to 18 years imprisonment and 10 whipping for each offence. The accused
being dissatisfied with the decision then appealed to the High Court.

Issues
i) Whether the age of the tear is important in rape case.
ii) Whether the tear of vagina support the victims claims that she has been
raped by the offender.

Principles
Criminal Law Penal Code sec 376

Held
The issue of the tear and the age of the tear were vital in a rape case, and the judge
handling the trial before him must be clear of the said issue, and should decide
whether the said tear could support the claim made by a victim, and the tendency to
show that the accused was the offender or person who caused the tear





Comment

In the case of Ahmad Najib, as the victim has attained the age of majority,
element of consent from the victim was important to determine whether there is rape
or not. If the victim was freely consent to the sexual intercourse between the
accused and the victim, then there is no rape. However, if the victim not consented
to the act of the accused, then the act of the accused can be charged under sec 375
of Penal Code regarding rape. In the current case, the victim have been kidnapped
by the appellant, a total stranger, and been driven in a state of fear to the unknown
destination by the appellant, who was intent to accomplished the act against the
victim. Therefore, it is impossible to entertain any doubt that the intercourse was
without the free consent of the victim. Thus, the conviction for the charge of rape was
right.

While in the case of Gan Kim Seang, the victim, Low Siong Choong, 14 years
old, not attained the age of majority which the age of majority is 16 years old for girl.
Therefore, in the current case, it was statutory rape because during the incident
happened, the victim still below the age of majority, thus the act by the offender
during that time was considered as statutory rape. Statutory rape means sexual
intercourse with person who is below the age. In the case of statutory rape, element
of consent was irrelevant either consent was given or not. Meaning that, either the
sexual intercourse with or without consent, as long as the victim was below the age
of majority which is not attained 16 years old, the act of the offender was considered
as rape. Since there is no issue of consent, the court will look at the age of the tear
whether the tear was recent or not. If the tear was recent, then it shows that the
woman or the victim had sexual intercourse within the previous twelve hours and
thus there is higher possibility that the victim have been raped. Regarding the issue
whether the tear is sufficient to support the victims claim can be done by DNA test.
Therefore, all of this evidence should be analysed critically by the judge to establish
whether there is rape or not.

The difference between these two cases was that, in the first case, the
defendant need to prove element of consent on part of the victim whether she was
consent to the act of the defendant or not. If she said that she was consented to the
act of the defendant, there is no issue of rape. However, if the victim said that she
was not consented to it, thus, it was rape. While in the second case, the victim at that
time was 14 years old and not attained the age of majority which the age of majority
in Malaysia is 18 years and above for male and female. Since, the victim was below
the age of majority, it was considered as statutory rape. In statutory rape, there is no
need to determine whether there is consent or not on part of the victim because in
this case, element of consent was irrelevant. Thus, the court only has to look at the
medical evidence whether there is the tear of hymen or not. If there is the tear of
hymen, the court must look at the age of the tear whether it was the old or new tear.