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Rape 375 And 377

2010] 2 MLJ 547


Ahmad Faizal Ali bin Aulad Ali & Ors v Public Prosecutor
HIGH COURT (SHAH ALAM)
YEOH WEE SIAM JC
CRIMINAL APPEAL NO 42–110 OF 2007
28 July 2009
Criminal Law — Penal Code — Rape and carnal intercourse against order of nature —
Appeal against conviction and sentence — Whether conviction was wrong — Whether
trial judge erred in law and fact — Whether accused positively identified by victim —
Whether sufficient supporting evidence to establish prima facie case — Whether
failure of prosecution to produce DNA test report implicating accused fatal — Whether
DNA test report essential in rape cases — Whether reasonable doubt raised by
defence — Whether conviction safe — Whether imprisonment sentence manifestly
excessive — Penal Code ss 376 & 377C
Criminal Procedure — Accused — Unsworn statement from dock, making by —
Offence of rape and carnal intercourse against order of nature — Duty of trial judge in
evaluating unsworn statement — Whether weight to be given to unsworn statements
— Whether reasonable doubt raised by defence to rebut prosecution's case
Evidence — Accomplice — Whether witness was accomplice — Whether there was
evidence of participation in commission of offence
Evidence — Statement — Unsworn statement from dock by accused — Duty of trial
judge in evaluating unsworn statement — Whether weight to be given to unsworn
statements

The victim/complainant SP2, was a student aged 19 years 5 months. She had
befriended the second appellant and had gone out with him on his motorcycle on their
meeting. The second appellant took SP2 to a house on the pretext that his mother
wanted to meet her. When they reached a 2 storey terrace house, SP2 was forced into
the house by several male persons who were there. SP2 was forcibly taken to a room
upstairs where she was raped and subjected to carnal intercourse against the order of
nature by the appellants who made her suck their private parts. Later, another male
person in the house ('SP4') helped SP2 by sending her to the Puchong Police Station
where SP2 lodged a police report and was later sent to the hospital for
2 MLJ 547 at 548
examination. The first and second appellants were, inter alia, charged under s 377C of
the Penal Code ('the Code'). The third appellant was charged under s 376 and s 377C
of the Code. The three appellants claimed trial and were jointly tried. At the close of
the prosecution's case, the trial judge held that a prima facie case had been
established and called the three appellants to enter their defence. The three
appellants opted to give unsworn statements from the dock for their defence. At the
close of the case for the defence, the trial judge held that the defence had not raised
any reasonable doubt and therefore found the three appellants guilty as charged and
convicted them. Each of them were sentenced to 12 years imprisonment with effect
from the date of sentence. The three appellants appealed against the conviction and
sentence. Learned counsel submitted that SP4 was an accomplice to the three
appellants and therefore his evidence could not be used to support SP2's evidence
unless it was corroborated. It was also contended that the DNA report did not connect
to the three appellants but only connected to an 'Unknown male 1'.

Held, dismissing the appeal of the three appellants:


 (1)
In relation to the offence of rape allegedly committed by the third
appellant, the ingredients required to be proved for the offence were: (i)
that the third appellant had sexual intercourse with the victim, SP2; (ii)
that such sexual intercourse occurred against SP2's will or without SP2's
consent; (iii) that there was penetration; and (iv) that the third appellant
and SP2 were not husband and wife. All four ingredients were proved by
the prosecution (see paras 36–42).

 (2)

As for the charge under s 377C of the Code against the three appellants,
the ingredients to be proved by the prosecution were: (i) that the three
appellants committed carnal intercourse against the order of nature; and
(ii) that such act was committed without the consent or against the will of
the victim. Both ingredients were proved by the prosecution (see paras
43–44).

 (3)

As for the identity of the three appellants, the trial judge did not err in her
findings. SP2 could positively identify the three appellants. SP2 also
identified the three appellants in the identification parade held by the
police (see paras 55–56 & 58).

 (4)

As for supporting evidence, the trial judge relied on the police report
lodged by SP2 a few hours after the incident. The trial judge also relied on
the evidence given by the medical doctor ('SP3') who examined SP2. SP3's
evidence was not challenged by the defence. It could be safely concluded
that SP2 was raped, based on the findings of SP3. The trial judge also
relied on the supportive evidence of SP4 who had prohibited the three
appellants and the other male persons there to have any more sexual
relations with SP2 and took SP2 to the police station. The trial

2 MLJ 547 at 549

judge also relied on the evidence of SP5, the investigating officer, which
was consistent with what SP4 had informed him. SP5 confirmed that SP2
was in a state of sadness and fear, and was very weak and tired. Based on
these evidence, the trial judge did not err in fact or in law in holding that a
prima facie case had been established against the three appellants (see
paras 59–60, 62 & 64–66).

 (5)

There was no evidence to prove that SP4 was committing the same
offences as the three appellants or abetting them in the committing of
such offences. There was no evidence on any role of SP4 as an accomplice
or accessory after the fact. SP4 was a competent witness and his evidence
could be accepted to support SP2's evidence (see para 96).

 (6)

The failure of the prosecution to produce more evidence of DNA testing on


more relevant specimens does not mean that the evidence of the
prosecution witnesses, in particular SP2, SP4 and SP3 should be rejected
by the court. There is still no law to require that rape cases can only be
proved by DNA tests and reports. As such, the court could accept, the
existing evidence adduced by the prosecution. Just because the DNA
report was not connected to the three appellants, it did not mean that
they did not commit the offences in their respective charges (see paras
103–104).

 (7)

An unsworn statement has to be evaluated by the trial judge and given


the weight as the trial judge thinks fit, but the weight accorded cannot be
as much as the weight that a trial judge would give to a sworn statement
given by an accused person from the witness box. The unsworn
statements from the dock of the three appellants did not have much
weight. The defence of the three appellants was a mere denial and no
reasonable doubt was raised by the defence to rebut the prosecution's
case (see paras 113 & 115).

 (8)

The conviction of the three appellants was confirmed and maintained. The
sentence imposed by the trial judge on each of the three appellants was
fair and appropriate, and commensurated with the offence committed. It
was not manifestly excessive to warrant an intervention by the appellate
court (see paras 116–117).

Mangsa/pengadu SP2 adalah seorang penuntut berumur 19 tahun 5 bulan. Dia telah
berkawan dengan perayu kedua dan keluar bersamanya menaiki motosikal dalam
pertemuan mereka. Perayu kedua telah membawa SP2 ke sebuah rumah dengan
helah bahawa ibunya ingin berjumpa dengan SP2. Apabila mereka tiba di sebuah
rumah teres dua tingkat, SP2 telah dipaksa masuk ke dalam rumah itu oleh beberapa
orang lelaki yang berada di situ. SP2 secara paksa telah dibawa ke bilik di tingkat atas
di mana dia telah dirogol dan dijadikan subjek hubungan seksual yang melanggar tabii
oleh
2 MLJ 547 at 550
perayu-perayu yang telah memaksanya menghisap bahagian sulit mereka. Kemudian,
salah seorang daripada lelaki di rumah itu ('SP4') telah menolong SP2 dengan
menghantarnya ke Balai Polis Puchong di mana SP2 telah membuat laporan polis dan
kemudian dihantar ke hospital untuk pemeriksaan. Perayu pertama dan kedua, antara
lain, telah dituduh di bawah s 377C Kanun Keseksaan ('Kanun tersebut'). Perayu
ketiga telah dituduh di bawah s 376 dan s 377C Kanun tersebut. Ketiga-tiga perayu
meminta dibicarakan dan telah didengar bersama. Di penutup kes pendakwaan,
hakim perbicaraan memutuskan bahawa kes prima facie telah dibuktikan dan
memanggil ketiga-tiga perayu untuk membela diri. Ketiga-tiga perayu memilih untuk
memberikan kenyataan tidak bersumpah dari kandang untuk pembelaan mereka. Di
penutup kes pembelaan, hakim perbicaraan memutuskan bahawa pembelaan tidak
menimbulkan apa-apa keraguan munasabah dan oleh itu mendapati ketiga-tiga
perayu bersalah seperti yang dituduh dan mensabitkan mereka. Mereka masing-
masing telah dihukum 12 tahun penjara bermula dari tarikh hukuman. Ketiga-tiga
perayu telah merayu terhadap sabitan dan hukuman. Peguam yang bijaksana
menghujahkan bahawa SP4 merupakan rakan sejenayah kepada ketiga-tiga perayu
dan oleh itu keterangannya tidak boleh digunakan untuk menyokong keterangan SP2
kecuali jika ia disokong. Ia juga ditegaskan bahawa laporan DNA tidak dikaitkan
dengan ketiga-tiga perayu tetapi hanya dikaitkan dengan 'Unknown male 1'.

Diputuskan, menolak rayuan ketiga-tiga perayu:


 (1)

Berhubung kesalahan rogol yang didakwa telah dilakukan oleh perayu


ketiga, faktor-faktor yang perlu dibuktikan untuk kesalahan itu adalah: (i)
bahawa perayu ketiga telah melakukan hubungan seksual dengan
mangsa; (ii) bahawa hubungan seksual itu berlaku tanpa persetujuan SP2;
(iii) bahawa terdapat penembusan; dan (iv) bahawa perayu ketiga dan
SP2 bukan suami isteri. Kesemua empat faktor tersebut telah dibuktikan
oleh pihak pendakwaan (lihat perenggan 36–42).

 (2)

Berhubung dengan pertuduhan di bawah s 377C Kanun tersebut terhadap


ketiga-tiga perayu, faktor-faktor yang dibuktikan oleh pendakwaan
adalah: (i) bahawa ketiga-tiga perayu telah melakukan hubungan seksual
di luar tabii; dan (ii) bahawa tindakan sedemikian telah dilakukan tanpa
persetujuan atau kerelaan mangsa. Kedua-dua faktor tersebut telah
dibuktikan oleh pendakwaan (lihat perenggan 43–44).

 (3)

Berhubung identiti ketiga-tiga perayu, hakim perbicaraan tidak terkhilaf


dalam penemuannya. SP2 boleh secara positif mengenal pasti ketiga-tiga
perayu. SP2 juga telah mengenal pasti ketiga-tiga perayu dalam barisan
pengecaman yang dikendalikan oleh polis (lihat perenggan 55–56 & 58).

2 MLJ 547 at 551


 (4)

Berhubung keterangan sokongan, hakim perbicaraan bergantung kepada


laporan polis yang dibuat oleh SP2 doktor perubatan ('SP3') yang telah
memeriksa SP2. Keterangan SP3 tidak dicabar oleh pembelaan.
Kesimpulan boleh dibuat bahawa SP2 telah dirogol, berdasarkan
penemuan SP3. Hakim perbicaraan juga bergantung kepada keterangan
sokongan SP4 yang telah melarang ketiga-tiga perayu dan lelaki lain di
situ agar tidak melakukan hubungan seksual lagi dengan SP2 dan telah
membawa SP2 ke balai polis. Hakim perbicaraan juga bergantung kepada
keterangan SP5, pegawai penyiasat, yang konsisten dengan apa yang
diberitahu kepadanya oleh SP4. SP5 telah mengesahkan bahawa SP2
berada dalam keadaan sedih dan ketakutan, dan lemah dan letih.
Berdasarkan keterangan tersebut, hakim perbicaraan tidak terkhilaf dari
segi fakta atau undang-undang dalam memutuskan bahawa kes prima
facie telah dibuktikan terhadap ketiga-tiga perayu itu (lihat perenggan 59–
60, 62 & 64–65).

 (5)

Tiada keterangan membuktikan bahawa SP4 telah melakukan kesalahan


sama seperti ketiga-tiga perayu itu atau membantu mereka melakukan
kesalahan tersebut. Tiada keterangan tentang peranan SP4 sebagai rakan
sejenayah atau peserta menurut fakta. SP4 merupakan saksi yang
kompeten dan keterangannya boleh diterima bagi menyokong keterangan
SP2 (lihat perenggan 96).

 (6)

Kegagalan pendakwaan mengemukakan lebih banyak keterangan tentang


ujian DNA ke atas spesimen-spesimen yang relevan tidak bermaksud
bahawa keterangan saksi-saksi pendakwaan, khususnya SP2, SP4 dan SP3
patut ditolak oleh mahkamah. Masih tiada perundangan yang
menghendaki kes-kes rogol hanya boleh dibuktikan melalui ujian dan
laporan DNA. Oleh itu, mahkamah boleh menerima keterangan sedia ada
yang dikemukakan oleh pendakwaan. Hanya kerana laporan DNA tiada
kaitan dengan ketiga-tiga perayu, tidak bermaksud bahawa mereka tidak
melakukan kesalahan-kesalahan sepertimana dalam pertuduhan masing-
masing (lihat perenggan 103–104).

 (7)

Kenyataan tanpa sumpah perlu diteliti oleh hakim perbicaraan dan


dipertimbangkan menurut apa yang difikirkan sesuai oleh hakim
perbicaraan, tetapi pertimbangan yang diberikan tidak boleh sama seperti
pertimbangan yang hakim perbicaraan berikan untuk kenyataan
bersumpah yang diberikan oleh tertuduh dari kandang saksi. Kenyataan-
kenyataan tanpa sumpah dari kandang ketiga-tiga perayu tidak begitu
penting. Pembelaan ketiga-tiga perayu hanya penafian semata-mata dan
tiada keraguan munasabah ditimbulkan oleh pembelaan untuk
mematahkan kes pendakwaan (lihat perenggan 113 & 115).

 (8)

Sabitan ketiga-tiga perayu disahkan dan dikekalkan. Hukuman yang


dikenakan oleh hakim perbicaraan ke atas ketiga-ketiga perayu adalah

2 MLJ 547 at 552

adil dan wajar, dan bersesuaian dengan kesalahan yang telah dilakukan.
Ia tidak melampau sehingga memerlukan campur tangan mahkamah
rayuan (lihat perenggan 116–117).
Notes

For cases on Penal Code generally, see 4 Mallal's Digest (4th Ed, 2005 Reissue) paras
1262–2016.

For cases on unsworn statement from dock, see 7(2) Mallal's Digest (4th Ed, 2006
Reissue) paras 2517–2522.

For cases on unsworn statement from dock, making by, see 5(2) Mallal's Digest (4th
Ed, 2007 Reissue) paras 68–72.

For cases on whether witness was accomplice, see 7(2) Mallal's Digest (4th Ed, 2006
Reissue) paras 79–82.
Cases referred to

Masroni bin Ahmad Rafi v PP [1996] 1 LNS 341, HC (refd)

Mohamed Salleh v PP [1969] 1 MLJ 104, FC (refd)

PP v Ayyavoo a/l Subramaniam & Anor [2004] 6 MLJ 511, HC (folld)

PP v Mohd Abbas bin Danus Baksan [2004] 4 MLJ 160; [2004] 7 CLJ 249, HC (refd)

PP v Mohd Amin bin Mohd Razali & Ors [2002] 5 MLJ 406, HC (refd)

PP v Shariff Kadir [1997] 5 CLJ 463, HC (refd)


Legislation referred to

Criminal Procedure Code s 173(ha)

Penal Code ss 109, 376, 377C

Wan Razali bin Wan Kadir (Zaman Teng & Chan) for the appellants.
Isa bin Hassim (Deputy Public Prosecutor, Attorney General's Chambers) for the
respondent.
Yeoh Wee Siam JC

[1] This criminal appeal is in respect of the decision made by the learned sessions
court judge, Petaling Jaya ('the trial judge') regarding Sessions Court Petaling Jaya
Arrest Cases Nos 62–80 of 2004, 62–81 of 2004, 62–82 of 2004, 62–83 of 2004 and
62–84 of 004 ('the cases').

[2] The criminal appeal was heard on 24 July 2009 after which I delivered my oral
judgment briefly. The following is the full text of my judgment.

[3] Ahmad Faizal Ali bin Aulad Ali, the first accused ('the first appellant') was charged
with two charges as follows:
2 MLJ 547 at 553

62-80-2004

Pertuduhan Pertama

Bahawa kamu pada 4.5.2004 di antara jam lebih kurang 11.30 malam
hingga 5.5.2004 jam lebih kurang 3.00 pagi bertempat di rumah No.
45, Jalan ¾, Bandar Bukit Puchong, dalam Daerah Petaling, di dalam
Negeri Selangor telah bersubahat dengan Fazrul Afizi Bin Abu Hasan,
Nombor Kad Pengenalan: 841221-14-6043 dengan cara memegang
tangan sebelah kiri seorang perempuan bernama Nur Sa'adah Binti
Rahmat, nombor Kad Pengenalan: 841117-14-6334, berumur 19 tahun
5 bulan di mana kesalahan tersebut telah dilakukan atas sebab-sebab
persubahatan kamu dan oleh yang demikian kamu telah melakukan
satu kesalahan di bawah Seksyen 376 Kanun Keseksaan dibaca
bersama Seksyen 109 Kanun yang sama.

62-81-2004

Pertuduhan Kedua

Bahawa kamu pada 4.5.2004 di antara jam lebih kurang 11.30 malam
hingga 5.5.2004 jam lebih kurang 3.00 pagi bertempat di rumah No.
45, Jalan ¾, Bandar Bukit Puchong, dalam Daerah Petaling, di dalam
Negeri Selangor telah mengadakan hubungan seks luar tabii dengan
cara memaksa seorang perempuan bernama Nur Sa'adah Binti Rahmat,
nombor Kad Pengenalan: 841117-14-6334, berumur 19 tahun 5 bulan
menghisap kemaluan tanpa izin beliau dan oleh yang demikian kamu
telah melakukan satu kesalahan di bawah Seksyen 377C Kanun
Keseksaan yang boleh dihukum di bawah seksyen yang sama.

[4] Mohamad Afifi bin Arifin, the second accused ('the second appellant') was charged
with one charge as follows:

62-82-2004

Bahawa kamu pada 4.5.2004 di antara jam lebih kurang 11.30 malam
hingga 5.5.2004 jam lebih kurang 3.00 pagi bertempat di rumah No.
45, Jalan ¾, Bandar Bukit Puchong, dalam Daerah Petaling, di dalam
Negeri Selangor telah mengadakan hubungan seks luar tabii dengan
cara memaksa seorang perempuan bernama Nur Sa'adah Binti Rahmat,
nombor Kad Pengenalan: 841117-14-6334, berumur 19 tahun 5 bulan
menghisap kemaluan tanpa izin beliau dan oleh yang demikian kamu
telah melakukan satu kesalahan di bawah Seksyen 377C Kanun
Keseksaan yang boleh dihukum di bawah seksyen yang sama.

[5] Fazrul Afizi bin Abu Hassan, the third accused ('the third appellant') was charged
with two charges as follows:

62-83-2004

Pertuduhan Pertama
2 MLJ 547 at 554

Bahawa kamu pada 4.5.2004 di antara jam lebih kurang 11.30 malam
hingga 5.5.2004 jam lebih kurang 3.00 pagi bertempat di rumah No.
45, Jalan ¾, Bandar Baru Puchong, dalam Daerah Petaling, di dalam
Negeri Selangor telah merogol seorang perempuan bernama Nur
Sa'adah Binti Rahmat, nombor Kad Pengenalan 841117-14-6334,
berumur 19 tahun 5 bulan, oleh yang demikian kamu telah melakukan
satu kesalahan di bawah Seksyen 376 Kanun Keseksaan.

62-84-2004

Pertuduhan Kedua

Bahawa kamu pada 4.5.2004 di antara jam lebih kurang 11.30 malam
hingga 5.5.2004 jam lebih kurang 3.00 pagi bertempat di rumah No.
45, Jalan ¾, Bandar Bukit Puchong, dalam Daerah Petaling, di dalam
Negeri Selangor telah mengadakan hubungan seks luar tabii dengan
cara memaksa seorang perempuan bernama Nur Sa'adah Binti Rahmat,
nombor Kad Pengenalan: 841117-14-6334, berumur 19 tahun 5 bulan
menghisap kemaluan tanpa izin beliau dan oleh yang demikian kamu
telah melakukan satu kesalahan di bawah Seksyen 377C Kanun
Keseksaan yang boleh dihukum di bawah seksyen yang sama.

[6] The first appellant, second appellant and third appellant ('the three appellants')
had claimed trial to the charges and were jointly tried without any objections from the
defence since the offences involved the same victim in the same transaction.

[7] At the close of the prosecution's case, the trial judge held that a prima facie case
had been established against the three appellants on their respective charges.
Accordingly, the trial judge called the three appellants to enter their defence.

[8] The three appellants opted to give unsworn statements from the dock for their
defence.

[9] At the close of the case for the defence, the trial judge held that the defence had
not raised any reasonable doubt on the prosecution's case. She therefore found the
three appellants guilty as charged and convicted them. After hearing the plea in
mitigation the trial judge sentenced each of the three appellants to 12 years
imprisonment with effect from the date of sentence ie 29 October 2007 (see charge
sheets in the appeal record pp 7, 9, 11, 13 and 15). The trial judge did not impose
any punishment of whipping in view of the young age of the three appellants.

[10] Upon the application of counsel for the defence, the trial judge granted stay of
execution of the sentence pending the appeal.
2 MLJ 547 at 555

[11] At the time of the commission of the offence, the first appellant was 18 years
old (now 23), the second appellant was 21 years old (now 26), the third appellant was
20 years old (now 25), and the victim, Nur Sa'adah bt Rahmat ('SP2') was 19 years
and 5 months old (now 24).

[12] The three appellants are now appealing against the whole decision of the trial
judge ie against the conviction and sentence (see the notice of appeal in pp 1 and 2
and petition of appeal in pp 3–6 of the appeal record).

[13] The main issues, inter alia, as found in the petition of appeal can be summarised
as follows:
 (a)

the trial judge had erred in fact and law for finding that the prosecution
had established a prima facie case and for calling for the three appellants
to enter their defence;

 (b)

the trial judge had erred in fact and law for holding that the defence had
not raised any reasonable doubt on the prosecution's case and for finding
the three appellants guilty and convicting them on their respective
charges.

[14] In pp 547, 548 and 552 of the appeal record, the trial judge, in her grounds of
judgment, admitted that she had erred in finding that the prosecution had succeeded
in proving a prima facie case against the first appellant in respect of the offence in the
first charge under s 376, read together with s 109 of the Penal Code ie for abetment
of rape. This is because, after scrutinising the evidence of SP2, the trial judge found
that there was no evidence to show that the first appellant was holding the left hand
of SP2 to enable the third appellant to rape SP2. For that reason, the trial judge
stated that the prosecution had failed to prove any abetment by the first appellant.

[15] The trial judge admitted that she therefore had made a mistake in calling for the
first appellant to enter his defence on his first charge. The trial judge stated that she
should have, instead, acquitted and discharged the first accused at that stage.

[16] In view of the clear admission of the trial judge regarding the above error, I
then set aside the order and sentence of the trial judge in respect of Case No 62–80
of 2004. The first appellant was acquitted and discharged on the first charge under s
376, read together with s 109 of the Penal Code.

[17] The background facts of the cases as laid down by the trial judge are as follows
(see the appeal record at pp 536–541).
2 MLJ 547 at 556

[18] The victim/complainant in this case, Nur Sa'adah bt Rahmat (SP2), was a
university student aged 19 years 5 months. On 4 May 2004, SP2 was having her
semester holidays and working part-time at a supermarket ie The Store, at Shah
Alam.

[19] SP2 befriended a male person known as 'Amy' three months before that. SP2
came to know Amy through the sms and telephone calls. However, SP2 had not met
Amy yet.

[20] On 4 May 2004, a male person named Amy invited SP2 to meet him. SP2 agreed
to do so after her work.

[21] After her work at 10.30pm that same day, SP2 went to the bus stop near the
supermarket, The Store, at Shah Alam. There, SP2 met a male person known as Amy.
That male person has been identified by SP2 as the second appellant.

[22] The second appellant invited SP2 to go walking around and going places with
him ('berjalan-jalan'). SP2 agreed and rode pillion on the second appellant's
motorcycle.

[23] According to SP2, the second appellant brought SP2 to Puchong where they
stopped at a restaurant. The second appellant's hand phone rang several times and
SP2 was told by the second appellant that his mother told him to go back quickly and
that his mother wanted to meet SP2.

[24] At first SP2 did not want to follow the second appellant back to meet his mother.
After some persuasion and affection shown by the second appellant, SP2 agreed to
follow him.

[25] When they reached a two storey terrace house, which apparently was the
second appellant's house, the second appellant asked SP2 to go into the house. SP2
did not want to do so. SP2 waited for the second appellant's mother to come out of
the house but the mother did not come out.

[26] After that, SP2 saw 4–5 motorcycles heading towards and coming into the
compound of the house. Then a male person, who was wearing a striped shirt,
forcefully pulled SP2's towards the house. After that, five male persons, who were
riding their motorcycles before this, surrounded SP2. SP2 did not feel good about it
and was beginning to feel frightened.

[27] After that, the male persons pulled SP2 into the house and they entered the
living room. There, SP2 saw 5–6 more male persons who were
2 MLJ 547 at 557
sitting down and chit-chatting. At that time, the second appellant was next to SP2 and
the first appellant was behind SP2. The second appellant went upstairs to call his
mother several times. After that, SP2 was pulled upstairs whilst the first appellant was
pushing SP2 from behind.

[28] Then the second appellant told SP2 to enter a room on the left. The light in the
room was switched on and SP2 could see a queen size bed. The first appellant entered
the room and switched off the light.

[29] After that, the first appellant pushed SP2 onto the bed and invited SP2 to play
('main'). The first appellant pressed down upon SP2 who was then lying weakly on the
bed. SP2 screamed and tried to push the first appellant's body away but the first
appellant pressed SP2's hand until SP2 felt pain and started to cry and scream 'Tak
nak, tak nak'. After that, the first appellant tried to strangle SP2's neck, and closed
SP2's mouth and nose until SP2 could not breathe. Then the first appellant touched
and groped SP2's body, kissed her mouth and unbuttoned her clothes. After that, the
first appellant pulled off SP2's pants and inserted his male organ into SP2's private
part. The first appellant sat on SP2's body and moved towards SP2's face and forced
SP2 to lick his male organ. SP2 was not sure whether the first appellant's seminal fluid
came out but SP2 felt a salty taste in her mouth.

[30] After that, the first appellant went out of the room. The second appellant then
came in. SP2 was angry with the second appellant and asked him to release her. The
second appellant said that he could help SP2 on condition that SP2 sucked his male
organ. SP2 did not agree. However, the second appellant took off his trousers a little
and took out his male organ. The second appellant pulled SP2 and asked her to suck
his male organ. The second appellant's male organ was shoved into SP2's mouth 3–4
times, and pushed and pulled in and out. According to SP2, the second appellant's
male organ was erect. SP2 was not sure whether the second appellant let out his
seminal fluid. SP2 vomited out her saliva and it got onto the second appellant's
trousers, and the second appellant scolded SP2. After that, the second appellant left
the room through the bathroom door.

[31] SP2 saw that several male persons had crowded together at the bathroom door,
and were looking at everything. Later the male persons entered the room and asked
SP2 how she came there. After that, a male person, whom SP2 identified as the third
appellant, came and rubbed slowly SP2's body. SP2 got scared and screamed. The
male persons who had earlier entered the room then left the room leaving only the
third appellant and two other male persons. The third appellant pulled SP2 to the bed
and threw her down onto it. After that, the two male persons pulled off SP2's pants.
The third appellant told the two male persons to leave the room. Then the third
2 MLJ 547 at 558
appellant unzipped his trousers, took out his male organ and told SP2 to suck it. After
that, the third appellant went on top of SP2's body and inserted his male organ into
SP2's private part for about 5–10 minutes.

[32] After that, about 12 male persons entered the room. SP2 was raped, sodomised
and forced to suck the male organs of these male persons, who were not known to
SP2. The first appellant inserted his finger into SP2's private part. Later, the third
appellant inserted his male organ once again into SP2's private part; this time, it was
for a longer period. The third appellant also inserted his male organ into SP2's anus.

[33] Later, a male person ('SP4') came and asked the third appellant to stop what he
was doing. The male person (SP4) told SP2 to wear her clothes and then he brought
her to the room downstairs. The first appellant directed SP2 to bathe. After bathing,
SP2 was told to cook 20 packets of Maggi mee for the male persons who were in that
house.

[34] When it was all finished, the male person who tried to help SP2 (SP4) sent SP2
to the Puchong Police Station. SP2 lodged a police report (exh P2) and was later sent
to hospital for a doctor's examination.

[35] Based on the evidence of SP2 and the male person who helped SP2 (SP4), a few
male persons were arrested including the three appellants, who were subsequently
charged in the sessions court in Petaling Jaya.
Whether the prosecution has established a prima facie case

[36] The trial judge dealt first with the offence of rape allegedly committed by the
third appellant under s 376 of the Penal Code. The trial judge correctly summed up
the ingredients required to be proved for the offence as follows (see the appeal record
at p 541):
 (a)

the third appellant had sexual intercourse with the victim, SP2;
 (b)

such sexual intercourse occurred under one of the following circumstances


provided under s 377C of the Penal Code:

o (i)

against SP2's will;

o (ii)

without SP2's consent;

 (c)

there was penetration;

 (d)

the third appellant and SP2 were not husband and wife.

First and third ingredients

[37] The trial judge held that the first and third ingredients were proved based on
SP2's testimony as follows.
2 MLJ 547 at 559

[38] The third appellant entered the room with several male persons through the
bathroom door. After those male persons had gone out of the room, the third
appellant pulled and forced SP2 down onto the bed. Two other male persons from the
group that was there earlier pulled off SP2's pants, after which there were told to
leave the room by the third appellant. The third appellant then lay on top of SP2's
body and unzipped his trousers, took out his male organ, opened SP2's thighs and
legs and inserted his male organ into SP2's private part for about 5–10 minutes.
According to SP2, at that time there was light coming from the lamp outside and this
enabled SP2 to see the third appellant's male organ which was in an erect state. SP2
also felt pain when the third appellant penetrated SP2 with his male organ. From this
evidence given by SP2, it shows that there was sexual intercourse between the third
appellant and SP2 and there was penetration by the third appellant's male organ into
SP2's private part.

[39] I fully agree with the trial judge's findings that the first and third ingredients
above have been proved by the prosecution.
Second ingredient

[40] The trial judge was correct to conclude that the sexual intercourse was against
SP2's will and without SP2's consent for the following reasons:
 (a)
SP2 did not know the third appellant at all;

 (b)

before the third appellant raped SP2, SP2 was raped by the first appellant.
The first and second appellants had forced SP2 to suck their male organs;

 (c)

SP2 was not able to fight the third appellant under those circumstances
and there was no one who was prepared to help her;

 (d)

there were several male persons who entered the room where SP2 was
and they sat around SP2 and this made SP2 very frightened and she
screamed loudly;

 (e)

the third appellant pulled SP2 by her clothes to the bed and pinned SP2
down to the bed and two other male persons pulled off SP2's pants. Under
those circumstances, SP2 was unable to resist the third appellant.

[41] The above clearly prove that the sexual intercourse that took place between the
third appellant and SP2 was definitely against SP2's will and without her consent.
Therefore, the second ingredient of the offence was also proved by the prosecution.
Fourth ingredient

[42] The trial judge again correctly concluded that the fourth ingredient of
2 MLJ 547 at 560
the offence was proved since it cannot be disputed that the third appellant and SP2
were not husband and wife at the time of the sexual intercourse. I note that they
were both total strangers to each other, considering that they had never met before
the incident.

[43] As for the charge under s 377C of the Penal Code against the three appellants,
the trial judge again correctly summed up the following ingredients which have to be
proved by the prosecution:
 (a)

the first, second and third appellants committed carnal intercourse against
the order of nature;

 (b)

such act was committed without the consent or against the will of the
victim.

[44] The trial judge correctly concluded that ingredients (a) and (b) above have been
proved by the prosecution as follows.

[45] In respect of the first appellant, there was no evidence to show that SP2
willingly sucked the first appellant's male organ. SP2 did not know the first appellant
at all. In a situation where the first appellant was on top of SP2's body, SP2 had no
choice but to follow the first appellant's instructions.

[46] Therefore, both ingredients of the offence under s 377C of the Penal Code were
successfully proved by the prosecution against the first appellant in order to establish
a prima facie case.

[47] In respect of the second appellant, the trial judge also correctly concluded that
ingredients (a) and (b) above have been proved by the prosecution as follows.

[48] According to SP2, after the first appellant left the room, the second appellant
entered the room. At that time SP2 was sitting on the bed. The second appellant
opened his trousers a little and took out his 'anu' or male organ. The second appellant
then held SP2's neck and pulled SP2 to suck his male organ. SP2 confirmed that the
second appellant inserted his male organ 3–4 times into her mouth by pushing it in
and out. SP2 could also see the second appellant's male organ, which was erect,
through the light which came from outside. The act committed by the second
appellant is clearly carnal intercourse against the order of nature.

[49] There was no evidence to show that SP2 willingly sucked the second appellant's
male organ. SP2 had only just met the second appellant after knowing him through
the phone for three months. SP2 did ask the second appellant to release her but the
second appellant agreed to do so on condition
2 MLJ 547 at 561
that SP2 sucked his male organ first. However, SP2 did not agree. SP2 had just been
raped by the first appellant and was forced to suck the first appellant's male organ. In
view of that, SP2 was in a state of trauma and extreme stress. It is not probable that
SP2 willingly did whatever she did.

[50] From the above, I agree with the trial judge that both ingredients of the offence
under s 377C of the Penal Code had also been proved by the prosecution against the
second appellant in order to establish a prima facie case.

[51] In respect of the third appellant, the trial judge correctly concluded that
ingredients (a) and (b) above have been proved by the prosecution as follows.

[52] According to SP2, before the third appellant raped her, the third appellant was
on top of SP2's body. The third appellant pushed SP2's head and forced SP2 to suck
his male organ twice. From SP2's evidence, it is clear that the third appellant
committed carnal intercourse against the order of nature.

[53] There is also no evidence to show that SP2 was willingly sucking the third
appellant's male organ. SP2 did not know the third appellant at all. With the third
appellant being on top of SP2's body, SP2 had no choice but to follow the third
appellant's order.

[54] Here again, from the above, I agree with the trial judge that both ingredients of
the offence under s 377C of the Penal Code have been proved by the prosecution
against the third appellant in order to establish a prima facie case.
[55] As for the identity of the three appellants, I find that the trial judge did not err in
her findings as follows.

[56] SP2 could positively identify the second appellant, who was the person who met
SP2 at the bus stop near The Store, Shah Alam. SP2 also rode pillion on the second
appellant's motorcycle to the house. SP2 and the second appellant did stop for a while
at a restaurant. SP2 definitely can identify the second appellant because she had
already seen his looks and body form.

[57] In the case of the first appellant, SP2 also had seen his face when he was
pushing SP2 to go upstairs. Whilst in the room, SP2 could see the first
2 MLJ 547 at 562
appellant with the light that came from outside. The same also applied to the third
appellant. SP2 could see him in the room with the light that came from outside.

[58] SP2 also identified the first, second and third appellants in the identification
parade held by the police.

[59] As for supporting evidence, the trial judge relied on the police report lodged by
SP2 (exh P2) a few hours after the incident, in the early hours of 5 May 2004.

[60] The trial judge also relied on the evidence given by the medical doctor ('SP3')
who examined SP2 on 5 May 2004 at about 7pm at the Pusat Perubatan Universiti
Malaya (PPUM). The results of SP3's examination on SP2 (see the appeal record at pp
549 and 550) show that SP2 had swelling and bruises below her right arm. SP2 had
pain in her pubic area. SP3 found that there were several tears in SP2's hymen in her
vagina, in the 5, 6, 7 and 9 o'clock positions. In several of the tears there was some
bleeding. Just outside SP2's hymen were lacerations in the 3, 6 and 9 o'clock
positions. SP2's vulva was swollen, and painful when touched. According to SP3, the
tears happened in less than 24 hours, and such tears happened as a result of the
penetration of a blunt and hard object such as a male organ.

[61] The evidence of SP3 was not challenged by the defence. It can be safely
concluded that SP3 was raped, based on the findings of SP3.

[62] The trial judge also relied on the supportive evidence of SP4 who is the son of
the tenant of the house where the incident took place. SP4 knew the three appellants
before the incident. SP4 confirmed that the three appellants had come to his house on
4 May 2004. At first SP4 was not aware that there was a girl ie SP2 who had come to
his house. When SP4 went upstairs and entered the second room through the door of
the bathroom, SP4 saw a girl, who was clothed, on the bed. SP4 also saw the three
appellants in the room. SP4 prohibited the three appellants and the other male
persons there to have any more sexual relations with SP2. SP4 saw SP2 crying and
SP2 appealed to SP4 to send her back.

[63] SP4 also confirmed that SP2 was directed to bathe and cook Maggi mee for the
male persons who were in the house. After that, SP4 took SP2 to the Puchong Police
Station.

[64] The trial judge also relied on the evidence of SP5, the investigating officer,
which is consistent with what SP4 had informed him. SP5 confirmed that SP2 was in a
state of sadness and fear, and was very weak and tired.
2 MLJ 547 at 563
[65] Based on the above, except for first charge in respect of first appellant, I am of
the opinion that the trial judge did not err in fact or in law in holding that a prima
facie case has been established by the prosecution against each of the three
appellants on their respective charges.
Whether the defence has raised any reasonable doubts on the prosecution's
case

[66] The three appellants opted to give their defence by way of unsworn statements
from the dock.

[67] According to the trial judge, each of the three appellants denied that they had
carnal intercourse against the order of nature by forcing SP2 to suck their male
organs. The third appellant also denied that he had raped SP2.

[68] The trial judge held that since the three appellants gave unsworn evidence from
the dock, and they could not be cross-examined, she found it difficult to give value to
the evidence, and she gave very little weight to such evidence.

[69] The trial judge was of the opinion that the unsworn evidence of the three
appellants was a mere denial and therefore the three appellants had failed to raise
any reasonable doubt on the prosecution's case. Accordingly, the trial judge found the
three appellants guilty on their respective charges and convicted and sentenced them.

[70] From a maximum evaluation of the totality of the evidence, except for the
decision on the first appellant in respect of the first charge, I am convinced that the
trial judge had not misdirected herself or had erred in fact and law regarding her
decision on the respective cases against the three appellants.

[71] Learned counsel for the three appellants ('learned counsel') raised several issues
in his written submissions to support the appeal. I will now consider these issues.
Inconsistencies in SP2's evidence

[72] On the first day of hearing ie 31 May 2005, in her examination-in-chief, SP2
stated that before she was raped by the first appellant, two other male persons
entered the room and took off SP2's pants. However, on the next day, when
questioned by the prosecution, SP2 stated
2 MLJ 547 at 564
that on the first day, she was mistaken. She corrected her evidence to say that when
the first appellant was raping her, the other two male persons did not come in to be
together with them.

[73] To me, the evidence should therefore be the corrected version as given by SP2
on the second day of hearing. However, irrespective of whether the other two male
persons were present or not, SP2 was definite in her evidence that the first appellant
did rape her.

[74] Learned counsel submitted that the trial judge stated that the first appellant
forced SP2 to lick his male organ after raping SP2 (see the appeal record at p 538).
SP2, however, had made a correction in her evidence and stated that, before being
raped, the first appellant forced her to lick his male organ for 15 minutes.

[75] To my mind, there is a clear difference between 'after' and 'before' in terms of
time. However, in this case, irrespective of the discrepancy in time, SP2 was clear in
her evidence that the first appellant did force her to lick his male organ. SP2 identified
the first appellant in court as the person who not only raped her, but also forced her
to suck his male organ, hit her and rubbed her.

[76] Learned counsel submitted that if what SP2 was alleging is true, then why was
the first appellant not charged for rape.

[77] In my opinion, only the prosecution can answer this question. The discretion to
prosecute or not to prosecute is with the public prosecutor. Notwithstanding that,
SP2's recorded evidence shows clearly that the first appellant did rape SP2 twice on
that same occasion.

[78] Learned counsel submitted that if what SP2 alleged is true, then why the
medical doctor, SP3, in her evidence did not state the effects of SP2 being beaten by
the first appellant even though SP2 was examined within 24 hours from the incident.

[79] I believe this is a question that only SP3 can answer. However, it must be borne
in mind that the first appellant was charged for an offence under s 377C of the Penal
Code; but he was not charged for the offence of assault. Evidence of being beaten
would be more material to a charge for assault. SP2 did not state whether she was
beaten so badly that there were visible marks. So by the fact that SP3 did not find
such marks on SP2, it can only be inferred that there were no such marks. The
absence of such marks, or the lack of evidence by SP3 on such marks, does not mean
that the first appellant did not commit the offence under s 377C of the Penal Code.
2 MLJ 547 at 565

[80] SP2 in her evidence stated that apart from raping her, the third appellant also
sodomised her. Learned counsel questioned why the third appellant was not charged
for sodomy if what SP2 alleged is true.

[81] As I had stated earlier, the discretion whether to prosecute or not to prosecute
lies with the public prosecutor. Learned counsel should have posed this question to
the investigating officer when cross-examining him. Just because the third appellant
was not charged for the offence of sodomy, it does not mean that SP2's evidence on
the charges against the three appellants cannot be believed or accepted.
SP2's evidence is not credible

[82] Learned counsel submitted that SP2 could narrate in great detail the whole
incident in court even after one year. He then questioned why SP2 could not
remember the two other persons who came, whether before she was raped by the
first appellant, or when she was raped by the third appellant (see the appeal record at
p 113).

[83] The above can only be answered by SP2 but the lack of such evidence on the
other two persons does not detract from SP2's evidence on the respective offences
committed by the first and third appellants.

[84] Learned counsel also submitted that if SP2 could give such a detailed story
which involved many suspects, why then, did the DNA report connect it to only one
unknown male.

[85] Here, I am of the view that this can only be answered by the investigating
officer and the DNA expert.
[86] The above two submissions by learned counsel do show some inconsistencies in
SP2's evidence but such inconsistencies are not material to the substantive issues
regarding the charges or prove that SP2 is not a credible witness.
SP2's evidence as complainant was not corroborated

[87] It is time, as submitted by learned counsel, that evidence on rape should be


corroborated.

[88] In this case, it is unfortunate that SP2 was a victim of gang rape and it would
be impossible to get eye witnesses to come forward to corroborate her evidence. Be
that as it may, SP3's medical evidence confirmed evidence of
2 MLJ 547 at 566
rape on SP2. This, for the purposes of this case, is sufficient to support SP2's
evidence.
SP2's evidence conflicts with her police report

[89] The inconsistencies raised by learned counsel on this point in pp 5 and 6 of his
written submissions are not material except for one point ie SP2 in court stated that a
few people raped her. However, in her police report, she stated only one person raped
her.

[90] Learned counsel did not apply in the sessions court proceedings to impeach
SP2's credit, so her evidence in court has to be accepted.

[91] What is material here is that the three appellants were charged under s 377C of
the Penal Code, but only the third appellant was charged for rape.
SP2's evidence conflicts with SP4's evidence

[92] Learned counsel submitted that SP2 stated that the last suspect who was with
her in the room was the third appellant before SP4 came in to take SP2 away;
whereas SP4 stated that when he first entered the room there was a male person
called Apek who was sitting on the bed with SP2. However, I note that SP4 did state
that other than Apek, the three appellants were also initially there and then left the
room when SP4 told them to stop having any more sexual relations with SP2.

[93] I do not think that SP2's evidence conflicts with SP4's evidence. SP4 confirmed
that the third appellant was present; so was Apek. Later the third appellant left the
room.

[94] Whether Apek was the last one present in the room with SP2 or otherwise does
not detract from SP2's clear testimony that the third appellant raped her. SP2 did
testify that there were several other male persons who also raped her ie from the
group of 12 who entered the room after the third appellant had raped her, but she
could not identify them.
SP4's evidence as an accomplice or an accessory after the fact

[95] Learned counsel submitted that SP4 was an accomplice to the three appellants
and therefore his evidence could not be used to support SP2's evidence unless it was
corroborated.
2 MLJ 547 at 567

[96] I do not find any cogent evidence on record to prove that SP4 was an
accomplice to the three appellants or an accessory after the fact. SP2 did state that
when she first went into the house with the second appellant, she saw Rashid ie SP4.
However, there is no evidence that SP4 saw her at that point in time. The evidence
showed that, out of the blue, SP4 walked into the room where SP2 later was. There
was no other evidence to prove that SP4 was committing the same offences as the
three appellants or abetting them in the committing of such offences. There was only
evidence that SP4 is the son of the tenant of the house. SP4's parents were away and
not at home at that time. There was no evidence on any role of SP4 as an accomplice
or accessory after the fact. Therefore, I am of the opinion that SP4 is a competent
witness and his evidence can be accepted to support SP2's evidence.
Defective identification parade ('IP')

[97] In pp 12–17 of learned counsel's submissions, he pointed out the defects of the
IP and urged that the guidelines for holding an IP as laid down by VT Singham J
in Public Prosecutor v Ayyavoo a/l Subramaniam & Anor [2004] 6 MLJ 511 be
followed.

[98] The guidelines in Ayyavoo are good and should be followed as closely as possible
each time an IP is conducted.

[99] In this case, however, it is clear from the evidence adduced that SP2 could
easily identify each of the three appellants. Even SP4 confirmed the identity of the
three appellants. There is no good reason why such positive identification by SP2, and
supported by SP4's evidence, should be rejected by the court.
The DNA report (exh P19 (A–I)) did not connect it to the three appellants

[100] It is true, as submitted by learned counsel that the DNA report did not connect
it to the three appellants. It is only connected to an 'Unknown male 1'.

[101] There is no evidence on why only certain samples were sent for DNA testing
and why SP2's saliva was not sent for such testing.

[102] Investigations regarding this case should be most meticulous to ensure that
every possible specimen found at the place of the incident be sent for DNA testing.
Unfortunately, there is no evidence on this.
2 MLJ 547 at 568

[103] However, the failure of the prosecution to produce more evidence of DNA
testing on more relevant specimens does not mean that the evidence of the
prosecution witnesses, in particular SP2, SP4 and SP3 should be rejected by the court.
There is still no law to require that rape cases can only be proved by DNA tests and
reports. As such, for the purpose of this case, the court can still, and will accept, the
existing evidence adduced by the prosecution.

[104] Just because the DNA report was not connected to the three appellants, it does
not mean that they did not commit the offences in their respective charges. There can
be many reasons why the DNA report was not linked to the three appellants eg there
could be no seminal fluid stains of the three appellants found at the place of the
incident to be taken for DNA testing if such fluids were not discharged by the three
appellants at the time when the offences were committed. SP2 could not confirm
whether any of the three appellants had let out their seminal fluids. She did state that
when the first appellant inserted his male organ in her mouth she felt a salty taste.
She did not state that she spat it out. She further stated that she spat out her saliva
on to the second appellant's trousers but she was not sure whether he had discharged
his seminal fluids at the time of the commission of the offence. In this case, as
submitted by learned counsel, there were three patches of seminal fluids which were
found and sent for DNA tests. The DNA report confirmed that they belonged to an
'Unknown male 1'. It is any one's guess whether that unknown male is Apek ie the
last male person found sitting on the same bed as SP2, when SP2 was lying down on
the bed. That unknown male could also be any other male person. As SP3, the doctor,
had testified, even if SP2 was raped by several persons, from the medical point of
view, one cannot confirm which person raped her. If none of the three appellants let
out their seminal fluids, then there would be no samples of theirs to be taken for DNA
tests.

[105] Finally, I would like to caution that despite the complexity of the written
submissions filed by learned counsel for the three appellants, and raising several
issues of inconsistencies which I find not sufficiently material to nullify the evidence of
the prosecution witnesses, the bottom line that all parties must be reminded is that
such issues raised in the written submissions cannot detract from the true position
that the three appellants' defence was made by way of unsworn statements from the
dock, and was not subject to challenge or cross-examination by the prosecution.

[106] The law regarding the status of unsworn statements given by an accused
person from the dock is as follows.

[107] Section 173(ha) of the Criminal Procedure Code, Act 593 ('the CPC') provides
for the accused person to be given three options to enter on
2 MLJ 547 at 569
his defence, one of which options is to give an unsworn statement from the dock.
However, the CPC does not provide for the weight to be given by the court for an
unsworn statement from the dock. We therefore have to rely on case law. The cases
available regarding this issue are only High Court cases.

[108] In Public Prosecutor v Shariff Kadir [1997] 5 CLJ 463, Hishamuddin Yunus J
stated as follows:

If the position is that the accused's unsworn statement from the dock is not evidence, the
next basic and pertinent question that follows is: what weight should be attached to such
a statement? This is another difficult issue, but one thing is clear though: since, as a
matter of law, an accused cannot be cross-examined on his unsworn statement made
from the dock, such a statement cannot carry the same weight as evidence given in the
witness-box under oath. In Mohamed Salleh the trial judge directed the jury to give the
unsworn statement of the accused 'such weight as the jury think fit' and this direction was
upheld by the Federal Court as proper …

Applying this principle to the case of a trial by a judge sitting alone (ie without a jury),
like in the present case, the weight that should be given to such a statement must be
such weight as the judge thinks fit. (Emphasis added.)

[109] In Masroni bin Ahmad Rafi v Public Prosecutor [1996] 1 LNS 341, Jeffrey Tan J
stated as follows:

The appellant gave a statement from the dock. The right of an accused … to make an
unsworn statement from the dock is not a procedural right but a substantive
right: Mohamed Salleh v Public Prosecutor [1969] 1 MLJ 104 at p 105 per Wee Chong Jin
CJ; see also Udayar Alagan & Ors v Public Prosecutor [1962] MLJ 39 . An accused who
makes a statement from the dock should not be questioned by the trial judge except for
the purpose of clearing up ambiguities (Suhaime bin Haji Serat v Reg [1956] MLJ
252). However, the weight to be given to a statement from the dock, since such a
statement is not sworn evidence and would not have been tested by cross-examination,
must be less than it being evidence from the witness box (see Mohamed Salleh v Public
Prosecutor [1969] 1 MLJ 104 at p 105).'… it is not entitled to the same [10] weight as
sworn testimony': Public Prosecutor v Karim Othman [1994] 2 CLJ 826 at p 836 per
Lamin J(as he then was); see also Shimmin's case 15 Cox CC 122 at p 124. As to the
particular evidential value to be given to an unsworn statement from the dock, 'much
depends on the particular circumstances of each case': Director of Public Prosecutions v
Walker [1974] 1 WLR 1090 per Lord Salmon. And in Public Prosecutor v Lee Ah Ha [1989]
1 MLJ 120, where the prosecution had made out a case, Abdul Malek J (as he then was)
held that a mere denial through a statement from the dock had not raised any doubt on
the prosecution case. (Emphasis added.)

[110] In Public Prosecutor v Mohd Amin bin Mohd Razali & Ors [2002] 5 MLJ 406,
Zulkefli J stated as follows:
2 MLJ 547 at 570

The position in law is that the right of an accused person to make an unsworn statement
from the dock is a substantive right. However, we must bear in mind that statement from
the dock is not sworn evidence which can be the subject of cross-examination. Not so
much weight can be given to what the accused said in the dock when compared to what
the accused would give under sworn evidence. This is so because when a man gives
evidence one can cross-examine him and test his evidence and generally have a better
opportunity of assessing him. Nevertheless, the law is very clear that the court cannot
outright reject such evidence. The court must consider it and give it such weight for what
it is worth and think fit having regard to the evidence adduced as a whole before the
court. See the cases of Public Prosecutor v Sanassi [1970] 2 MLJ 198 and Mohamed
Salleh v Public Prosecutor [1969] 1 MLJ 104.

[111] Masron bin Ahmad is a 1996 case and Mohd Amin bin Mohd Razali is a 2002
case. Both these cases cited Mohamed Salleh v Public Prosecutor [1969] 1 MLJ
104 which is a 1969 case to hold that the right of an accused person to give an
unsworn statement from the dock is a substantive right. However, s 173(ha) of the
CPC was introduced by way of an amendment ie Act A 1274, which come into force on
7 September 2007. With the amendment, the right of an accused person to make an
unsworn statement from the dock is now a procedural right.

[112] In Public Prosecutor v Mohd Abbas bin Danus Baksan [2004] 4 MLJ 160;
[2004] 7 CLJ 249, KP Gengadharan Nair JC, stated as follows:

It is, in my humble view, quite clear that the accused was merely trying to tailor his
defence in an attempt to create doubts about the prosecution's case knowing full well,
having opted to give his evidence in the form of an unsworn statement from the dock that
his story cannot be tested by cross-examination. The end result of his statement is just a
mere denial and assertions not supported by evidence. It is trite that mere denial without
other proof to reasonably dislodge the evidence presented by the prosecution is
insufficient to inject reasonable doubt into the prosecutions' case (see Public Prosecutor v
Ling Tee Huah [1982] 2 MLJ 324; [1980] 1 LNS 212).

[113] From the above, it is clear that an accused person has a procedural right to opt
to give his evidence for his defence by way of an unsworn statement from the dock.
However, the accused person would not be subject to cross-examination for such
statement made. Therefore, such unsworn statement has to be evaluated by the trial
judge and given the weight as the trial judge thinks fit, but the weight accorded
cannot be as much as the weight that a trial judge would give to a sworn statement
given by an accused person from the witness box.
2 MLJ 547 at 571

[114] In the instant case, the trial judge held that it was difficult to give value to the
unsworn statements given by the three appellants from the dock, and she finally
decided that she could only give very little weight to such evidence.

[115] I am of the opinion that the unsworn statements from the dock of the three
appellants given for their defence do not have much weight, as correctly decided by
the trial judge. The trial judge also held that the defence of the three appellants is a
mere denial and, therefore, there was no reasonable doubt raised by the defence to
rebut the prosecution's case.

[116] The conviction of the three appellants by the trial judge on their respective
charges is confirmed and maintained.

[117] Regarding the sentence imposed by the trial judge on each of the three
appellants, I am of the view that such sentence is fair and appropriate, and
commensurate with the offence committed. It is not manifestly excessive that it
warrants an intervention by this court. The sentence should be seen in the light of the
background facts as enumerated earlier. The three appellants preyed upon a young
innocent girl, who followed the second appellant to the house based on trust and
friendship, and abused her body for their own selfish gratification, without regard to
morality or conscience, or the fear of God. Such repulsive crimes should be punished
in the most deterrent manner to prevent future cases of random gang rape and
sexual abuse upon the young girls of our society. Even though the prosecution had
not filed a cross-appeal on sentence, had it not been for the young age of the three
appellants, I am of the strong view that the sentence of imprisonment should be
enhanced, considering the severe maximum punishment provided for the respective
offences in the Penal Code.

[118] Be that as it may, the sentence imposed on each of the three appellants is
confirmed.

[119] The appeal of the three appellants is dismissed.

[120] Learned counsel for the three appellants applied for stay of execution of the
sentence pending an appeal to be made to the Court of Appeal. The prosecution did
not object to bail being offered, provided that the original amounts of bail of
RM14,000 for each of the first and third appellants and RM10,000 for the second
appellant be now increased, considering that the decision of the trial judge has been
affirmed by this court. The learned DPP informed the court that in the lower court, the
prosecution had actually objected to bail. However, bail was granted.
2 MLJ 547 at 572
[121] I granted stay of execution of the sentence pending the outcome of the appeal.
A cash bail of RM20,000 in one surety was granted to each of the three appellants.
Appeal dismissed.
Reported by Kanesh Sundrum

Rape Incest
[2008] 2 MLJ 501
Gan Kim Seang lwn Pendakwa Raya
Find out more
 Find related commentaries

MAHKAMAH TINGGI (MUAR)


AHMADI ASNAWI PK
RAYUAN JENAYAH NO 44-7 TAHUN 2007
12 December 2007
Acara Jenayah — Perbicaraan — Perbicaraan semula — Kuasa mahkamah dalam
mengarahkan perbicaraan semula — Kanun Prosedur Jenayah s376
Acara Jenayah — Siasatan polis — Laporan polis — Perselisihan antara laporan polis dan
hasil siasatan — Sama ada laporan polis yang tidak konsisten dengan dakwaan boleh
menjadi faktor pembuangan kes
Undang-Undang Jenayah — Rogol — Koyakan selaput dara — Sama ada masa koyakan
penting — Sama ada koyakan menyokong dakwaan mangsa

Sebanyak empat pertuduhan telah dikenakan terhadap orang kena tuduh ('OKT') di
Mahkamah Sesyen Muar iaitu dua pertuduhan utama (merogol) dan dua pertuduhan
alternatif (mencabul kehormatan). Selepas perbicaraan, OKT telah disabitkan dengan
kedua-dua pertuduhan utama dan dikenakan hukuman penjara selama 18 tahun dan 10
sebatan bagi setiap kesalahan. OKT tidak berpuas hati dengan keputusan tersebut lalu
merayu ke Mahkamah Tinggi.

Diputuskan, membenarkan rayuan terhadap pertuduhan pertama dan memerintahkan


perbicaraan semula untuk pertuduhan kedua:
 (1)

Adalah jelas bahawa ketinggalan yang terdapat di dalam laporan polis yang
merupakan laporan maklumat pertama bagi membolehkan pihak polis untuk
memulakan sesuatu siasatan bukanlah merupakan faktor yang akan
menyebabkan sesuatu kes itu dibuang, kerana ianya bukanlah 'substantive
evidence of its contents'. Sebaliknya ianya adalah merupakan keterangan yang
bernilai untuk menentang atau menyokong sesuatu testimoni yang diberikan
oleh saksi (lihat perenggan 9).

 (2)

Walaupun laporan polis itu tidak menyatakan bahawa SP2 telah dirogol oleh
OKT, ianya tidak akan menjejaskan kes pendakwaan kerana ianya

2 MLJ 501 at 502


hanyalah permulaan bagi siasatan yang dilakukan oleh pihak polis sehingga
membawa kepada pertuduhan yang dikenakan kepada OKT (lihat perenggan
10).

 (3)

Hakim sesyen tersebut mempunyai tanggungjawab untuk menerangkan


perselisihan yang terdapat di dalam laporan polis dan hasil siasatan yang
didapati oleh pihak polis setelah siasatan dilakukan (lihat perenggan 12).

 (4)

Isu koyakan dan usia koyakan adalah penting di dalam sesuatu kes rogol, dan
hakim yang mengendalikan perbicaraan di hadapannya hendaklah jelas
mengenai isu tersebut, dan perlu memutuskan sama ada koyakan tersebut
dapat menyokong dakwaan yang dibuat oleh seseorang mangsa, dan
berkecenderungan untuk menunjukkan bahawa OKT adalah pelaku atau
penyebab kepada koyakan tersebut (lihat perenggan 16).

 (5)

Jika timbul isu yang kritikal, hakim yang mendengar kes tersebut hendaklah
memusatkan perhatiannya kepada isu tersebut dan mencapai kesimpulannya
sendiri berdasarkan keterangan yang ada. Apa yang beliau perlu lakukan adalah
untuk menyatakan secara ringkas fakta dan undang-undang yang telah
dipertimbangkan olehnya dan langkah-langkah yang diambil olehnya di dalam
menilai perkara tersebut (lihat perenggan 19).

 (6)

Menurut s 316 Kanun Prosedur Jenayah, semasa mendengar sesuatu kes yang
dirayu di hadapannya, mahkamah ini mempunyai kuasa budi bicara untuk
mengeluarkan apa-apa perintah termasuklah perintah untuk mengadakan
perbicaraan semula, jika ianya adalah bersesuaian untuk dilakukan (lihat
perenggan 25).

There were four charges imposed against the accused in the Muar Sessions Court ie, 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.

Held, allowing accused's appeal for first charge and ordering a retrial for the second
charge:
 (1)

It was clear that the omission in the police report that was the first information
report which could enable the police to commence certain investigation was not
a factor which caused the case to be thrown out,

2 MLJ 501 at 503


because it was not 'substantive evidence of its contents'. Instead it was a
priceless evidence which could oppose or corroborate certain testimony given by
the witness (see para 9).

 (2)

Although that police report did not state that SP2 was raped by the accused, it
did not jeopardise the prosecution's case because it was only the initial
investigation conducted by the police which lead to the charge imposed on the
accused (see para 10).

 (3)

The said sessions judge has a duty to explain the inconsistency found in the
police report and the outcome of the investigation by the police after
investigation was conducted (see para 12).

 (4)

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 (see para 16).

 (5)

When critical issue arises, the judge who hears the case must direct his
attention to the said issue and reach a conclusion himself based on the existing
evidence. What he must do is to state in brief the facts and the laws considered
by him and the measures which was undertaken by him to assess the said
matter (see para 19).

 (6)

Pursuant to s 316 of the Criminal Procedure Code, during the hearing of certain
cases which were appealed before the court, the court is vested with its
discretionary power to issue any orders including the order for retrial, if it is
appropriate to do so (see para 25).

Nota-nota

Untuk kes-kes mengenai laporan polis, lihat 5(2) Mallal's Digest (4th Ed, 2004 Reissue)
perenggan 2774-2775.

Untuk kes-kes mengenai perbicaraan semula, lihat 5(2) Mallal's Digest (4th Ed, 2007
Reissue) perenggan 4967-4969.

Untuk kes-kes mengenai rogol secara am, lihat 4 Mallal's Digest (4th Ed, 2005 Reissue)
perenggan 2963-2964.
Kes-kes yang dirujuk
Abdul Rahman bin Ibrahim v Pendakwa Raya [2002] MLJU 133 (dirujuk)

Ah Mee v PP [1967] 1 MLJ 220 (dirujuk)

Aziz bin Muhamad Din v PP [1996] 5 MLJ 473 (dirujuk)

Balachandran v PP [2005] 2 MLJ 301 (dirujuk)

Balasingham v PP [1959] MLJ 193 (dirujuk)

Balwant Singh v PP [1960] MLJ 264 (dirujuk)

Chua Beow Huat v PP [1970] 2 MLJ 29 (dirujuk)

Dato' Seri Anwar Ibrahim v PP & another appeal [2004] 3 MLJ 405 (dirujuk)
2 MLJ 501 at 504

Hairani Sulong v PP [1993] 2 CLJ 79 (dirujuk)

Herchun Singh & Ors v PP [1969] 2 MLJ 209 (dirujuk)

Ho Ming Siang v PP [1966] 1 MLJ 252 (dirujuk)

Khoo Hi Chiang v PP [1994] 1 MLJ 265 (dirujuk)

Khwaja Nazir Ahmad, v Emperor AIR [1945] PC 18 (dirujuk)

Law Kiat Lang v PP [1966] 1 MLJ 215 (dirujuk)

Mahendran Manikam v PP [1997] 4 MLJ 273 (dirujuk)

Mohamad Terang bin Amit v PP [1999] MLJU 134 (dirujuk)

Mohd Johi Said & Anor v PP [2005] 5 MLJ 409 (dirujuk)

Murugiah v PP [1941] MLJ 17 (dirujuk)

Nasrul Annuar Abd Samad v PP [2005] 1 MLJ 619 (dirujuk)

Ooi Lean Chai v PP [1991] 2 MLJ 552 (dirujuk)

PP v Mardai [1950] MLJ 33 (dirujuk)

PP v Teo Eng Chan & Ors [1988] 1 MLJ 156 (dirujuk)

R v Baskerville [1916] 2 KB 658 (dirujuk)

Roshaizad bin Wan Long v Pendakwaraya [2001] MLJU 542 (dirujuk)

Shawal bin Hj Mohd Yassin v PP [2006] 4 MLJ 334 (dirujuk)

Tan Boon Hock v PP [1979] 1 MLJ 236 (dirujuk)


Undang-Undang yang dirujuk

Kanun Keseksaan ss 354 376B

Kanun Prosedur Jenayah ss 307 316


KP Low (KP Low & Co) bagi pihak perayu.
Haslinda Abu Bakar (Timbalan Pendakwa Raya) bagi pihak responden.
Ahmadi Asnawi PK:

[1] Di dalam kes ini terdapat empat pertuduhan yang dikenakan terhadap Orang Kena
Tuduh di Mahkamah Sesyen Muar, yang terdiri dari dua pertuduhan utama dan dua
pertuduhan alternatif, iaitu:

Pertuduhan 1

Bahawa kamu pada tarikh antara tahun 1998 hingga 2002, masa tengah malam, bertempat di rumah tidak
bernombor, Jalan Sakeh, di Daerah Muar, Negeri Johor, telah merogol Low Siew Choong (umur 14 tahun) KPT:
880121-23-5016, dengan itu telah melakukan kesalahan dibawah s 376B Kanun Keseksaan dan boleh dihukum di
bawah peruntukan yang sama.

Pertuduhan alternatif

Bahawa kamu pada tarikh antara tahun 1998 hingga 2002, masa tengah malam, bertempat di rumah tidak
bernombor, Jalan Sakeh, di Daerah Muar, Negeri Johor, dengan niat untuk mencabul kehormatan iaitu meraba
kemaluan Low Siew
2 MLJ 501 at 505
Choong (umur 14 tahun) KPT: 880121-23-5016, dengan itu telah melakukan kesalahan di bawah s 354 Kanun
Keseksaan dan boleh dihukum di bawah peruntukan yang sama.

Pertuduhan 2

Bahawa kamu pada tarikh antara tahun 2002 hingga Januari 2003, masa tengah malam, di rumah No.205, Jalan
Sri Treh, Taman Sri Treh, di Daerah Muar, Negeri Johor, telah merogol Low Siew Choong (umur 14 tahun) KPT:
880121-23-5016, dengan itu telah melakukan kesalahan dibawah s 376B Kanun Keseksaan dan boleh dihukum di
bawah peruntukan yang sama.

Pertuduhan alternatif

Bahawa kamu pada tarikh antara tahun 2002 hingga Januari 2003, masa tengah malam, di rumah No.205, Jalan
Sri Treh, Taman Sri Treh, di Daerah Muar, Negeri Johor dengan niat untuk mencabul kehormatan iaitu meraba
kemaluan Low Siew Choong (umur 14 tahun) KPT: 880121-23-5016, dengan itu telah melakukan kesalahan
dibawah s 354 Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama.

[2] Pertuduhan-pertuduhan tersebut telah dibicarakan di hadapan hakim sesyen


berkenaan, dan pada akhir perbicaraan OKT telah disabitkan dengan pertuduhan pertama
dan kedua, dan dikenakan hukuman penjara selama 18 tahun dan 10 sebatan bagi setiap
kesalahan, dan hukuman tersebut hendaklah dijalankan secara berturutan. Perayu ('OKT')
telah tidak berpuashati dengan sabitan dan hukuman yang dikenakan oleh Hakim Sesyen
berkenaan dan telah merayu ke mahkamah ini. Setelah meneliti nota keterangan, alasan
penghakiman dan mendengar penghujahan kedua-dua pihak OKT dan pendakwaan,
mahkamah ini telah membenarkan rayuan OKT terhadap pertuduhan yang pertama, dan
mengarahkan supaya pertuduhan kedua dibicarakan semula di hadapan hakim sesyen yang
lain. OKT telah tidak berpuas hati dengan perintah untuk perbicaraan semula tersebut, dan
telah memfailkan rayuannya terhadap keputusan yang diberikan oleh mahkamah. Berikut
adalah sebab-sebab mengapa mahkamah ini mengarahkan supaya pertuduhan kedua
dibicarakan semula di hadapan Hakim Sesyen yang lain.

[3] Terdapat beberapa isu yang ditimbul berkaitan dengan pertuduhan kedua di hadapan
mahkamah ini. Pertamanya, mengenai bentuk pertuduhan yang dikenakan kepada OKT, di
mana di dalam pertuduhan kedua tersebut dinyatakan bahawa pada tarikh antara tahun
2002 hingga Januari 2003 OKT telah melakukan kesalahan inses di bawah Kanun Keseksaan
s 376B. Persoalan mengenai isu pertuduhan sebegini telah pun diterangkan oleh Abdul
Hamid Mohamad HMP di dalam kes Dato' Seri Anwar Ibrahim v Public Prosecutor & another
appeal [2004] 3 MLJ 405, di mana setelah
2 MLJ 501 at 506
merujuk kepada kes Law Kiat Lang v Public Prosecutor [1966] 1 MLJ 215 dan Ho Ming Siang
v Public Prosecutor [1966] 1 MLJ 252 beliau telah menyatakan:

It is simply a question whether the alleged offences have to be proved to have been committed as per charge,
including the date. As has been pointed out, the Federal Court in the two cases referred to earlier did not address
its mind to the provision of s 153(1) of the Criminal Procedure Code. Perhaps that was because it was only dealing
with the question whether the charges should have been amended. In the instant appeals we are dealing with the
question whether, the offences not having been proved to have been committed on another date, it must be
proved to have been committed on the date stated in the charges. Section 153(1) of the Criminal Procedure Code
clearly states that 'The charge shall contain such particulars as to the time… ' Since it is mandatory to state the
'time ' (ie, date or period) when an offence is alleged to have been committed, clearly it is a 'material matter ' and
an 'essential part of the alleged offence', to use the words of Atkin J in the exception stated by him, even if that
case is applied. If the law clearly provides that the charge shall contain particulars as to 'time', it follows that such
particulars must be proved.

[4] Jika diperhatikan, pertuduhan di dalam kes Dato' Seri Anwar Ibrahim telah dirangka
dengan begitu cermat sekali seperti berikut, 'Bahawa kamu, pada satu malam di antara
bulan Januari hingga Mac 1993…', yang menunjukkan bahawa kesalahan itu telah dilakukan
pada satu malam di dalam tempoh masa yang dinyatakan di dalam pertuduhan, dan
bukannya menggambarkan satu kesalahan yang berterusan. Ini telah dijelaskan dengan
lebih lanjut oleh hakim berkenaan yang menyatakan (di ms 415):

It must be borne in mind that the duty on the part of the prosecution at the close of the case for the prosecution is
to prove beyond reasonable doubt, not only, that the offence was committed one night at Tivoli Villa, but also that
that 'one night ' was in the month of January until and including the month of March 1993. Even if it is proved that
the incident did happen but if it is not proved 'when', in law, that is not sufficient. This is because the period during
which the offence is alleged to have been committed is an essential part of the charge. It becomes even more
important when the defence, as in this case, is that of alibi. The appellants must know when (usually it means the
day or date, but in this case the period from and including the month of January until and including the month of
March 1993) they are alleged to have committed the offence to enable them to put up the defence of alibi.

[5] Seperti yang diterangkan, walaupun kejadian tersebut sememangnya telah terjadi,
tetapi 'bilakah' ianya terjadi mestilah dibuktikan oleh pihak pendakwaan. Berdasarkkan
keterangan SP2 (mangsa) di dalam kes, kejadian rogol/inses berlangsung sejak dari 1997
hingga 2003, tetapi bilakah ianya berlaku di dalam tempoh tersebut tidak diterangkan
secara jelas oleh SP2. Keterangan SP2 serta pertuduhan yang ada memberikan gambaran
bahawa
2 MLJ 501 at 507
kesalahan tersebut telah dilakukan secara berterusan, dan bukannya berlaku pada satu
masa tertentu di dalam tempoh yang ditetapkan, sedangkan kesalahan rogol atau pun inses
adalah merupakan 'one single act of unlawful sexual intercourse', seperti yang dinyatakan
oleh KC Vohrah H di dalam kes Mahendran Manikam v Public Porsecutor [1997] 4 MLJ
273 (di ms 275-276):

To be noted is that in her grounds of decision, the Judge, in amending the charge at the close of the case for the
prosecution, mentioned that the accused had raped the girl twice during the period 15 November 1993 to 21
January 1994. However the charge upon which he was called to make his defence and upon which he was
convicted was one single charge of rape. A pertinent question that arises is, upon which particular offence, which
particular act of rape, was the accused convicted and sentenced? The offence of rape in law is one single act of
unlawful sexual intercourse. It is not a continuing offence (see Ali Hyder v Emperor [1939] 40 CR LJ 280).
The charge should have been split by way of amendment for each offence or the prosecution should have been
directed to elect upon which offence the trial should have proceeded (see R v Jones 59 Cr App R 120 and see ss
158, 173(h) and 376 of the Criminal Procedure Code).

[6] Persoalan mengenai masa kejadian rogol/inses yang membawa kepada sabitan
terhadap OKT telah tidak dijelaskan oleh hakim yang mengendalikan perbicaraan tersebut.
Tiada penemuan spesifik di dalam alasan penghakimannya yang menunjukkan belaiu telah
secara kritikal telah menganalisa semua keterangan yang adadi hadapannya. Beliau telah
mengambil kesimpulan berdasarkan keterangan-keterangan yang ada di hadapannya, dan
menyatakan secara umum tanpa sebarang penjelasan lanjut kenapa beliau berpendapat
sedemikian. Apa yang dinyatakan oleh beliau hanyalah seperti berikut:

Di samping itu juga simangsa (saksi SP2) di dalam kes ini mengatakan bahawa apabila keluarga bapa saudara
beliau atau pun keluarga Orang Kena Tuduh (OKT) berpindah rumah dari Jalan Sakeh, Muar ke rumah yang
berlamat di Taman Sri Treh Muar pada 2002 simangsa (saksi SP2) juga ada ikut bersama-sama mereka pindah ke
rumah di alamat yang baru tersebut dan juga simangsa (saksi SP2) mengatakan bahawa kejadian rogol yang sama
sepertimana yang terjadi di rumah yang beralamat di Jalan Sakeh Muar tersebut tetap terus dilakukan dan juga
diulangi oleh bapa saudara beliau atau pun oleh Orang Kena Tuduh (OKT) di dalam kes ini terhadap diri simangsa
(saksi SP2) iaitu daripada tahun 2002 sehinggalah ke tahun 2003. Simangsa (saksi SP2) juga mengatakan oleh
kerana beliau sudah tidak tahan lagi bersabar untuk menerima dan juga untuk bertoleransi serta untuk bertolak
ansur dengan perbuatan dan juga sikap serta perangai dan tingkah laku bapa saudara beliau iaitu Orang Kena
Tuduh (OKT) di dalam kes ini yang telah mengambil kesempatan ke atas diri beliau selama ini di mana hampir
lebih kurang lima tahun lamanya iaitu dari tahun 1998 sehingga ke tahun 2003.
2 MLJ 501 at 508

[7] Jika dilihat keseluruhan keterangan yang diberikan oleh SP2, kejadian inses itu telah
berlaku secara berulang, dan sepatutnya hakim berkenaan hendaklah menentukan secara
spesifik kejadian yang manakah yang membawanya kepada kesimpulan bahawa OKT telah
melakukan kesalahan inses pada satu malam di antara tahun 2002 hingga Januari 2003,
dan boleh disabitkan dengan kesalahan sebagaimana dalam pertuduhan.

[8] Selain dari itu, Hakim Sesyen berkenaan juga telah gagal memberikan pendapatnya
berkenaan dengan kenyataan di dalam laporan polis (eks P91) yang dibuat oleh SP2 pada
tahun 2003 yang menyatakan bahawa beliau telah diraba, serta mengenai isu kelewatan
laporan tersebut dibuat oleh SP2. Mengenai isu diraba, dan bukannnya dirogol yang
dilaporkan oleh SP2 kepada pihak polis hendaklah ditangani oleh hakim sesyen berkenaan
berdasarkan kepada sudut undang-undang. Kesan kelewatan dan keboleh terimaan laporan
sedemikian perlu diperjelaskan oleh beliau. Di dalam laporan SP2, perkataan rogol atau pun
inses tidak ada dinyatakan sama sekali. Oleh itu apabila OKT dituduh dengan pertuduhan di
bawah s 376B Kanun Keseksaan, ianya membawa gambaran bahawa bahawa kesalahan
yang diadukan dan pertuduhan yang dikenakan terhadap OKT adalah tidak selaras dengan
pertuduhan yang dikenakan terhadapnya, dan isu ini patut diterangkan oleh hakim sesyen
di dalam penghakimannya. Di dalam hal demikian, mahkamah hendaklah memahami
apakah fungsi yang dimainkan oleh sesuatu laporan polis. Di dalam kes Herchun Singh &
Ors v Public Prosecutor [1969] 2 MLJ 209, 211, Ong Hock Thye CJ telah menyatakan:

As regards omissions in the first information report, we would endorse Sohoni's commentary on s 154 of the Indian
Criminal Procedure Code (16th Ed, Vol 1, p 750), which is similar to s 107 of our Criminal Procedure Code, as
follows:

It is a mistake to believe that a person cannot be the accused unless his name appears in the first information
report. The provisions of the Code lay down no such stipulation. All that is required for purpose of this section is
that there should be clear, definite information about the commission of a cognizable offence to set the
investigation machinery in motion. Further, the information required need not contain the circumstances of the
commission of the offence, nor the names of the offenders or the witnesses, for the main purpose of investigation
is to ascertain these matters. … The first information report is not an Encyclopaedia. It is not the beginning and
ending of every case. It is only a complaint to set the affairs of law and order in motion. It is only at the
investigation stage that all the details can be gathered and filled up. But it cannot be said that omissions in the first
information report would always be of no significance. The report is not substantive evidence and omissions in it
will not ipso factolead to the case being thrown out. But it is a piece of corroborative evidence; omissions in it will,
other things being the same, deprive the prosecution of the most valuable corroboration and thereby make the
story suspicious.
2 MLJ 501 at 509

When a first information report contains an omission as to an important fact relied upon by the prosecution, the
omission is important and in the absence of any other evidence, the court may in a given case refuse to consider
the evidence of the informant on that fact because of such omission. For a correct appraisal of the effect of
omission as contradicting the informant it is essential to keep in view the circumstances in which the report was
lodged.

For instance, an omission in a report hurriedly lodged under the press of events should not have the same
significance as one in a report lodged after cool calculation.

In short, it is wrong to hold up the first information report as a sure touchstone by which the complainant's credit
may invariably be impeached. It can only be used for that purpose with discrimination, in much the same way as
previous statements by the witness are used, so that irrelevant errors in detail are not given exaggerated
importance, nor omissions, objectively considered in the light of surrounding circumstances.

[9] Adalah jelas bahawa ketinggalan yang terdapat di dalam laporan polis yang merupakan
laporan maklumat pertama bagi membolehkan pihak polis untuk memulakan sesuatu
siasatan bukanlah merupakan faktor yang akan menyebabkan sesuatu kes itu dibuang,
kerana ianya bukanlah substantive evidence of its contents. Sebaliknya ianya adalah
merupakan keterangan yang bernilai untuk menentang atau menyokong sesuatu testimoni
yang diberikan oleh saksi. Ini telah dijelaskan oleh Augustine Paul JCA di dalam
kes Balachandran v Public Prosecutor [2005] 2 MLJ 301 iaitu (di ms 310):

The passage just referred to makes it patent that the evidentiary value of a first information report is only to
contradict the testimony of a witness under s 145 of the Evidence Act 1950 or to corroborate his testimony under s
157 of the said Act the operation of which is as explained in Lim Guan Eng v Public Prosecutor [2000] 2 MLJ 577. It
is not substantive evidence of its contents. The question that arises for determination, in the circumstances, is
whether the failure to adduce in evidence the first information report is capable of an adverse inference being
drawn against the prosecution under s 114(g) of the Evidence Act 1950. Where the evidence of a witness does not
require to be corroborated in law there is no obligation to tender corroborative evidence to support his testimony.
Thus if the case for the prosecution rests solely on the evidence of one witness in such a category there is no
requirement in law for his evidence to be corroborated. Any such requirement will conflict with s 134 of the
Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for the
proof of any fact. This means that the testimony of a single witness, if believed, is sufficient to establish any fact
(see Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998] 3 MLJ 457).

[10] Berdasarkan prinsip undang-undang yang dinyatakan di dalam kes di atas, pada
pendapat mahkamah walaupun laporan polis itu tidak menyatakan bahawa SP2 telah dirogol
oleh OKT, ianya tidak akan
2 MLJ 501 at 510
menjejaskan kes pendakwaan kerana ianya hanyalah permulaan bagi siasatan yang
dilakukan oleh pihak polis sehingga membawa kepada pertuduhan yang dikenakan kepada
OKT. Harus diingat bahawa laporan polis yang dibuat oleh mangsa sesuatu kes jenayah
akan mempunyai nilai sebagai keterangan yang menyokong testimoni yang dibuat oleh
mangsa. Apatah lagi, jika kes tersebut adalah melibatkan jenayah seksual, di mana
undang-undang telah menetapkan bahawa keterangan yang diberikan oleh pengadu di
dalam kes sedemikian hendaklah disokong oleh keterangan yang lain, sebagaimana yang
telah dinyatakan oleh Spensor-Wilkinson J di dalam kes Public Prosecutor v Mardai [1950]
MLJ 33 :

Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be
corroborated, nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this
kind unless either the evidence of the complainant is unusually, convincing or there is some corroboration of the
complainant's story. It would be sufficient, in my view, if that corroboration consisted only of a subsequent
complaint by the complainant herself provided that the statement implicated the accused and was made at the first
reasonable opportunity after the commission of the offence.

[11] Prinsip undang-undang juga telah mantap bahawa seseorang itu tidak boleh
menyokong keterangannya sendiri, dan oleh itu keterangan yang bebas adalah diperlukan
[Rigby J di dalam kes Balwant Singh v Public Prosecutor [1960] MLJ 264 ], yang berkaitan
dengan sesuatu fakta material which implicates the accused person and tends to confirm
that he is guilty of the offence; Ah Mee v Public Prosecutor [1967] 1 MLJ 220 ]. Di dalam
kes R v Baskerville [1916] 2 KB 658, 667, Lord Reading CJ telah menyatakan:

We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or
tending to connect him with the crime.

In other words, it must be evidence which implicates him, that is, which confirms in some material particular not
only the evidence that the crime has been committed, but also that the prisoner committed it.

[12] Di dalam kes yang dirayu ini, keadaan jelas menunjukkan bahawa Hakim Sesyen yang
membicarakan kes tersebut telah tidak menyentuh mengenai isu percanggahan yang
terdapat di dalam laporan polis yang dibuat oleh mangsa dan pertuduhan yang dikenakan
terhadap mangsa. Percanggahan tersebut perlu diperjelaskan oleh beliau dan hendaklah
diterangkan di dalam Alasan Penghakimannya. Bagaimanapun, dari Alasan Penghakiman
yang ada, jelas menampakkan bahawa beliau tidak memutuskan langsung persoalan yang
begitu material ini. Pada pendapat mahkamah, persoalan ini perlu diputuskan oleh beliau
kerana laporan polis adalah merupakan satu laporan maklumat pertama yang membawa
kepada tindakan oleh pihak polis. Di dalam kes Khwaja Nazir Ahmad, v Emperor
2 MLJ 501 at 511
AIR [1945] PC 18, Privy Council telah menyatakan Laporan Maklumat Pertama bukanlah
merupakan prasyarat bagi pihak polis untuk memulakan siasatan jenayah, tetapi ianya
membolehkan pihak polis mendapatkan maklumat awal mengenai kegiatan jenayah, dan
merekodkan keadaan kes itu sebelum ianya terlupa. Oleh yang demikian, pada pendapat
mahkamah ini, Hakim Sesyen tersebut mempunyai tanggungjawab untuk menerangkan
perselisihan yang terdapat di dalam laporan polis dan hasil siasatan yang didapati oleh
pihak polis setelah siasatan dilakukan.

[13] Kenyataan pengadu (SP2) kepada pihak polis, khususnya saksi SP8 menjurus kepada
perlakuan rogol/inses oleh OKT, dan bukan sebagaimana yang terdapat di dalam laporan
polis beliau. Bagaimana sesuatu keterangan tersebut akan menyokong testimoni pengadu
adalah bergantung kepada keadaan sesuatu kes itu sendiri. Misalannya di dalam kes Public
Prosecutor v Teo Eng Chan & Ors [1988] 1 MLJ 156 di ms 161 yang melibatkan kesalahan
rogol di bawah Kanun Keseksaan s 376, Coomaraswamy H telah berpendapat bahawa
pernyataan pengadu yang dibuat kepada doktor yang memeriksanya adalah merupakan
keterangan sokongan:

Her statement to Dr Chua and her use of the Mandarin equivalent of the words 'gang rape' in that statement
within 14 hours after the events are to my mind adequate corroboration. The number of hours is not by itself
important. Kay's complaint was made as speedily as could reasonably in the circumstances be expected of her.

[14] Selain dari itu, fakta yang didapati hasil dari pemeriksaan pegawai perubatan yang
memeriksa mangsa di dalam sesuatu kejadian rogol, adalah relevan untuk membuktikan
bahawa suatu kemasukan (penetration) telah berlaku terhadap kemaluan mangsa, dan
berkecenderungan untuk mengaitkan tertuduh dengan dakwaan yang dibuat oleh mangsa.
Di dalam kes ini, keterangan dari pegawai perubatan yang memeriksa SP2 dengan jelasnya
menyatakan bahawa terdapat koyakan kepada selaput dara OKT, tetapi usia koyakan itu
tidak dipastikan oleh doktor yang memeriksa SP2 iaitu SP9 dan SP10. Peguambela telah
mempersoalkan mengenai usia sebenar koyakan kerana SP2 menyatakan kejadian rogol
tersebut telah berlaku banyak kali di dalam tempoh lima tahun semenjak dari tahun 1997
lagi. Persoalan mengenai usia koyakan dan kepentingannya telah pun dijelaskan oleh
mahkamah di dalam kes Aziz bin Muhamad Din v Public Prosecutor [1996] 5 MLJ 473 di ms
486, di mana mahkamah telah menyatakan:

However, on a charge of rape where consent is irrelevant, medical evidence showing any fresh tear in the hymen is
sufficient to corroborate the evidence of the victim on the factum of rape (see Syed Abu Tahir a/l Mohamed Esmail
v Public Prosecutor [1988] 3 MLJ 485). With regard to an old rupture of the hymen, Thomson LP said in Din v
Public Prosecutor [1964] MLJ 300 at p 301.
2 MLJ 501 at 512

… The hymen was ruptured but this was not recent. In short this evidence did not support in any way that the
woman had had sexual intercourse within the previous twelve hours but on the other hand it did not negative such
a possibility.

R v Kerim [1988] 1 Qd R 426 is a case where the accused was charged with indecent dealing with and rape of his
12-year old step-daughter. The evidence of the complainant was said to have been corroborated by medical
evidence that her hymen was not intact. This evidence was consistent with her account that the accused had raped
her, but since the rupture was not established to have occurred at a time or place which involved the accused, this
evidence was held to be incapable of affording corroboration.

[15] Berdasarkan kes-kes yang dinyatakan di atas, pada pendapat mahkamah koyakan
yang lama, atau pun selaput dara yang tidak intact menunjukkan bahawa ada kemungkinan
pengaduan yang dibuat oleh pengadu adalah benar, dan memerlukan analisa lanjut oleh
Hakim Sesyen yang mendengar kes tersebut. Beliau hendaklah membuat dapatannya
berkenaan dengan perkara tersebut. Di dalam kes Abdul Rahman bin Ibrahim v Pendakwa
Raya [2002] MLJU 133, Augustine Paul H telah menyatakan:

Memandangkan koyakan pada selaput dara SP4 merupakan koyakan lama, ianya tidak menunjukkan koyakan
tersebut berlaku pada masa kejadian yang melibatkan Tertuduh. Ini dirumitkan lagi oleh fakta bahawa pada atau
lebih kurang masa yang material, SP4 juga telah dirogol oleh beberapa orang lelaki lain. Jadi keterangan SP1
adalah negatif dan tidak mampu menjadi qarinah bagi menyokong keterangan SP4. Jelaslah Hakim Mahkamah
Sesyen yang bijaksana telah tersilap dalam membuat dapatan fakta dengan memutuskan terdapat qarinah
berkaitan fakta rogol melalui keterangan SP1. Walau apa pun, persoalan perlunya qarinah hanya wujud jika
keterangan yang berkehendakkan qarinah itu sendiri adalah kukuh.Jika ianya tidak sedemikian, keterangan
tersebut mestilah ditolak.

[16] Oleh itu, isu koyakan dan usia koyakan adalah penting di dalam sesuatu kes rogol,
dan hakim yang mengendalikan perbicaraan di hadapannya hendaklah jelas mengenai isu
tersebut, dan perlu memutuskan sama ada koyakan tersebut dapat menyokong dakwaan
yang dibuat oleh seseorang mangsa, dan berkecenderungan untuk menunjukkan bahawa
OKT adalah pelaku atau penyebab kepada koyakan tersebut. Apakah dia yang dimaksudkan
sebagai koyakan boleh dilihat di dalam kes Roshaizad bin Wan Long v Pendakwaraya [2001]
MLJU 542, di mana mahkamah telah menyatakan:

Koyakan yang dinyatakan dalam keterangan SPl ialah koyakan kepada selaput dara atau 'hymen'. Perkataan
'hymen' menurut The Concise Oxford Dictionary bermaksud 'a membrane which partially closes the opening of the
vagina and is usually broken at the first occurrence of sexual intercourse.
2 MLJ 501 at 513

Oleh yang demikian koyakan yang dimaksudkan oleh SP1 adalah koyakan pada selaput dara yang disebabkan oleh
perhubungan seks kali pertama. Sebab itulah dalam keterangannya dia mengatakan bahawa daripada koyakan
hyemen dia tidak dapat memastikan berapa kali seseorang itu telah melakukan perhubungan seks. Dengan yang
demikian saya bersetuju dengan hujah Timbalan Pendakwa Raya bahawa analogi yang dibuat oleh peguambela
Perayu bahawa kejadian kedua tidak berlaku kerana tiada koyakan baru adalah tidak berasas. Keterangan SP3
adalah jelas bahawa kejadian pada. 10 Mei 1996 bukanlah kali pertama dia mengadakan perhubungan seks. Oleh
itu isu berkaitan dengan koyakan baru kepada selaput dara pada kejadian kedua itu tidak timbul.

[17] Sememangnya di dalam kes ini, terdapat koyakan pada hymen SP2 sepertimana yang
telah dijelaskan oleh SP9 dan 10, dan ianya membawa kemungkinan bahawa dakwaan-
dakwaan SP2 adalah benar, dan sepatutnya dianalisa secara kritikal oleh hakim tersebut.
Selain dari persoalan tersebut, isu yang turut berbangkit di dalam kes ini, adalah berkenaan
dengan ketiadaan keterangan pakar kerana salah seorang doktor pakar yang telah
memeriksa SP2, iaitu doktor P Kannappan telah tidak dipanggil oleh pihak pendakwaan
untuk memberikan keterangan di mahkamah. Pada pendapat mahkamah di dalam kes
sebegini tiada keperluan untuk berbuat demikian, dan hanya akan meletakkan beban yang
tidak berpatutan kepada pihak pendakwaan. Adalah memadai bagi pihak pendakwaan untuk
membawa keterangan seorang pegawai perubatan yang telah memeriksa mangsa di dalam
kes ini. Di dalam kes Mohamad Terang bin Amit v Public Prosecutor [1999] MLJU 134, Ian
Chin H telah menyatakan:

A point was taken by Mr Shek that both Dr Shamsir and Dr Pui are not expert witnesses within the meaning of s 45
of the Evidence Act 1950. Dr Shamsir was giving direct evidence of an examination he had carried out and not an
opinion. Therefore, the question of expert opinion does not arise in his case.
[18] Di dalam kes ini, SP2 telah diperiksa oleh dua orang doktor, iaitu SP9 dan SP 10 yang
merupakan pegawai-pegawai perubatan yang berkhidmat di hospital kerajaan. Keterangan
kedua-dua mereka adalah lebih dari mencukupi untuk membuktikan fakta bahawa terdapat
koyakan terhadap hymen mangsa. Keterangan tersebut adalah berdasarkan fakta yang
didapati hasil dari pemeriksaan mereka, dan bukannya didapati secara second hand. Tiada
sebab-sebab kenapa kehadiran doktor P Kannappan diperlukan oleh pihak pembelaan,
kerana menurut Abdul Hamid Omar LP di dalam kes Khoo Hi Chiang v Public
Prosecutor [1994] 1 MLJ 265, 272, kelayakan saksi itu dari segi akademiknya adalah
memadai untuk membolehkan keterangan saksi tersebut diterima oleh mahkamah:

On the question of the acceptance of the chemist's evidence on its face value, we see no reason to depart from the
decision in Munusamy v Public Prosecutor where it was stated that a chemist in drug cases merely reports the
result of the chemical
2 MLJ 501 at 514
examination of the substance. We would however qualify that by saying that although in that case the chemist who
gave evidence had been in the chemistry department for 12 years and possessed a BSc degree in chemistry and
biology and had given expert evidence in Court, and such evidence had been accepted in the High Court in drug
cases, it is our view that there was no necessity to show that he had given evidence in Court and that such
evidence had been accepted in the High Court in drug cases since the acceptance of his evidence was done on the
basis that such evidence was factual. What was really required for the prosecution to show for the admission of the
chemist's evidence on the identity of the drug was merely to adduce evidence as to his qualification in the field of
chemistry and that he was a chemist in the employment of any Government in the Federation and had examined or
analysed the drugs. His evidence may then be given orally or be set out in a report made by him to be admitted
under s 399 of the Code.

[19] Keterangan saksi-saksi seperti SP9 dan SP10 boleh diterima masuk oleh mahkamah.
Cuma persoalan berapakah weight yang patut diberikan oleh mahkamah terhadap
keterangan saksi tersebut hendaklah diputuskan oleh hakim yang mendengar kes tersebut.
Jika timbul isu yang kritikal sebegini, hakim yang mendengar kes tersebut hendaklah
memusatkan perhatiannya kepada isu tersebut (per Gopal Sri Ram HMR di dalam kes Mohd
Johi Said & Anor v Public Prosecutor [2005] 5 MLJ 409),dan mencapai kesimpulannya
sendiri berdasarkan keterangan yang ada. Apa yang beliau perlu lakukan adalah untuk
menyatakan secara ringkas fakta dan undang-undang yang telah dipertimbangkan olehnya
dan langkah-langkah yang diambil olehnya di dalam menilai perkara tersebut. Untuk
memahami secara jelas mengenai apa yang perlu dilakukan oleh seseorang hakim atau
majistret di dalam menulis alasan penghakimannya, maka penghakiman Sharma H Chua
Beow Huat v Public Prosecutor [1970] 2 MLJ 29 di ms 35, Sharma H adalah wajar diberikan
perhatian, iaitu:

In giving his grounds of judgment the learned magistrate (or the learned president) should briefly state the
matters both of fact and law which he considered, the care which he exercised in considering those matters, and
the extent and nature of doubt, if any, created in his mind. He should discuss the evidence and the probabilities
arising from the circumstances of the case. The reasons for his finding should be stated. The grounds should
indicate that he had in fact applied his mind to the evidence produced in the case, (see Balasingham v Public
Prosecutor [1959] MLJ 193).

[20] Seseorang hakim atau majistret yang gagal untuk memberikan alasan kenapa beliau
mempercayai atau tidak mempercayai sesuatu keterangan adalah melanggar peruntukan
Kanun Prosedur Jenayah s 307yang mengkehendaki seseorang hakim atau majistret untuk
berbuat demikian. Di dalam kes Murugiah v Public Prosecutor [1941] MLJ 17 di ms 18,
mahkamah telah menyatakan:
2 MLJ 501 at 515

It does not appear to me that a Magistrate complies with s 307(iii) of the Criminal Procedure Code which requires
him to give the 'Grounds of Decision' by stating 'I believe the evidence of the prosecution.'… I disbelieve the
evidence of the accused.' I think the Magistrate should state, except in the simplest of cases and they usually are
not the subject of appeal, the reasons why he believed or disbelieved the evidence in question.

[21] Mereka dikenakan tanggungjawab di bawah statut untuk memberikan alasan


penghakiman yang menyatakan alasan-alasan mereka berdasarkan fakta dan undang-
undang. Di dalam kes Balasingham v Public Prosecutor [1959] MLJ 193 di ms 194,
mahkamah telah menyatakan:

The trial court is under a statutory obligation under section 308 of the Criminal Procedure Code to transmit to the
appellate court the grounds of decision which convey to my mind a reasoned judgment on the facts and the law,
not merely the conclusion arrived. The advantage of a 'speaking' judgment needs no emphasis.

[22] Di dalam kes Nasrul Annuar Abd Samad v Public Prosecutor [2005] 1 MLJ 619,
Augustine Paul H menyatakan ianya hendaklah berdasarkan fakta yang telah dibuktikan (di
ms 624):

A finding must be based on proved facts or inferences drawn from proved facts. As Kitto J said in Jones v
Dunkel [1958-1959] IoI CLR 298 at p 305:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively
suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely
that in that case a specific event happened or a specific state of affairs existed.

[23] Selain dari isu-isu tersebut, persoalan juga ditimbulkan oleh pihak pembelaan
mengenai kegagalan mangsa (SP2) untuk membuat laporan dengan segera mengenai
kejadian rogol tersebut. Pada pendapat mahkamah, persoalan kelewatan tidak berbangkit di
dalam kes ini, kerana mangsa dengan seberapa segera telah membuat laporan polis pada
kejadian akhir, dan setelah mendapat pandangan dan nasihat dari orang-orang yang
dipercayainya. Di dalam kes Hairani Sulong v Public Prosecutor [1993] 2 CLJ 79, mahkamah
telah menyatakan:

The delay in reporting the commission of the offence by the complainant was stressed by learned Counsel for the
appellant. But in my view delay in reporting an offence such as rape should not be taken as evidence of concoction
without more. The reason for the delay should be considered in the light of the other relevant and admissible
evidence available before coming to any conclusion. In the present case the complainant explained the delay in
reporting was due to the threat of harm on her by the appellant. The complainant testified that later on the
appellant did strangle and push her down after she threatened to inform her
2 MLJ 501 at 516
parents of the commission of the offence. She found no help from the father on the subsequent incident even
though she reported it to him. The other reasons given by the complainant were that her parents were always
quarrelling and that her father always sided the appellant and that she was also still immature at that time and had
no experience on such matters. In my view her explanation was reasonable.

[24] Seperti yang dinyatakan di dalam kes di atas, alasan kenapa berlakunya kelewatan di
dalam membuat laporan polis hendaklah dipertimbangkan oleh mahkamah. Di dalam kes
ini, fakta menunjukkan bahawa kejadian telah berlaku semenjak mangsa (SP2) berumur 11
tahun lagi, dan merupakan kanak-kanak yang sedang belajar di dalam Darjah 5, dan
berlanjutan sehingga tahun 2003. Fakta juga tidak dipertikaikan bahawa SP2 menumpang
di rumah OKT yang merupakan bapa saudaranya setelah ibu dan bapanya bercerai, dan
bergantung hidup kepada OKT. Oleh yang demikian sebab-sebab kenapa beliau lambat
membuat laporan polis, serta keterangan-keterangan dari saksi-saksi yang ada hendaklah
dipertimbangkan secara menyeluruh oleh mahkamah.

[25] Setelah meneliti alasan penghakiman, nota keterangan dan mendengar penghujahan
dari kedua-dua pihak, mahkamah berpendapat Hakim Sesyen yang mengendalikan kes
tersebut telah gagal membuat dapatannya atas beberapa isu yang dibangkitkan, walaupun
keterangan yang ada berkecenderungan menunjukkan OKT telah melakukan kesalahan
tersebut. Oleh yang demikian, menurut Kanun Prosedur Jenayah s 316, semasa mendengar
sesuatu kes yang dirayu di hadapannya, mahkamah ini mempunyai kuasa budi bicara untuk
mengeluarkan apa-apa perintah termasuklah perintah untuk mengadakan perbicaraan
semula, jika ianya adalah bersesuaian untuk dilakukan. Di dalam kes Tan Boon Hock v
Public Prosecutor [1979] 1 MLJ 236, mahkamah telah mengarahkan perbicaraan semula
apabila mahkamah berpendapat OKT telah disabitkan di atas pertuduhan yang salah.
Sementara itu di dalam kes Ooi Lean Chai v Public Prosecutor [1991] 2 MLJ 552, Mahkamah
Agong telah menyatakan bahawa perbicaraan semula adalah bermaksud perbicaraan yang
baru, dan bukannya kesinambungan dari perbicaraan yang terdahulu.

[26] Di dalam kes Shawal bin Hj Mohd Yassin v Public Prosecutor [2006] 4 MLJ 334, Azahar
Mohamed PK telah merujuk kepada Mallal's Criminal Proceduredi dalam mempertimbangkan
sama ada sesuatu kes patut diicarakan semula (retrial). Menurut beliau (di ms 343):

With that I return to the present case and there is one matter of importance that I must touch upon. I have to
consider whether a retrial should be ordered. In this regard, Mallal's Criminal Procedure(5th Ed) at para 10476
commented:
2 MLJ 501 at 517

A new trial would mean the case is reopened and the accused is retried on all the charges originally framed. A
retrial would probably be ordered in cases where it is in the interests of justice to order one. The appellate court
has a wide discretion. Generally a new trial will be ordered where although there was actually a case to answer, the
case was rejected. A retrial may also be ordered when there is misdirection as to the onus of proof, or when the
trial judge has prevented the prosecution from adducing all the evidence it has desired to. Sometimes even though
there is a fault in the decision of the lower court the appellate court may be able to do justice without ordering a
new trial.

[27] Di dalam kes ini, keterangan yang diberikan oleh pengadu serta saksi-saksi
pendakwaan, dan bukti-bukti yang menyokong keterangan pengadu, menunjukkan bahawa
terdapatnya perlakuan inses yang dilakukan oleh oleh OKT terhadap SP2, dan terjumlah
kepada kesalahan di bawah Kanun Keseksaan s 376B. Bagaimanapun atas sebab-sebab
yang dinyatakan di atas, maka pada pendapat mahkamah, demi kepentingan keadilan,
adalah wajar supaya kes ini dibicarakan semula di hadapan hakim sesyen yang lain supaya
keadilan dapat ditegakkan.
Rayuan dibenarkan untuk pertuduhan pertama. Perbicaraan semula diperintahkan untuk
pertuduhan kedua.
Reported by Brendan Navin Siva

Gang Rape
1986] 2 MLJ 71
PUBLIC PROSECUTOR v NASAR BIN AHMAD & ORS
OCRJ BANDAR SERI BEGAWAN
ROBERTS CJ
CRIMINAL TRIAL NO 14 OF 1984
22 September 1984
Penal Code (Brunei Cap. 22), ss. 34 & 375 — Rape and attempted rape — Common
intention — Credibility of victim — Corroboration — Neutral medical evidence —
Sentence — Penal Code (Brunei Cap. 22), ss. 34 & 375
Evidence — Rape — Credibility of victim — Corroboration

The first charge in this criminal trial alleged that all the three defendants raped the
complainant Miss X, a 23-year-old divorcee and mother of two children at Meragang
on July 16, 1984. The second charge alleged that D1 and D2 raped Miss X at
Kampong Subok later on the same morning.

In respect of the second charge, she testified that she was subsequently driven by D2
to Kampong Subok, where D1 and D2 had sexual intercourse with her in a house
against her will. She made her police report on the following day, shortly after
midnight. She was medically examined about 48 hours after the rape was alleged to
have taken place. The prosecution case on the first charge was corroborated by two
independent eye witnesses. On the second charge, it had to rely on the evidence of
Miss X alone.

In their defence, D1 gave evidence on oath and D2 and D3 made unsworn statements
from the dock. They all maintained that they never had intercourse with Miss X.

Held:
 (1)

on the first charge as in almost all sexual cases, the credibility of the
victim is the most important single issue to be determined. Miss X was a
credible witness;

 (2)

it is dangerous to convict on the uncorroborated evidence of the


complainant. PW5 and PW7 saw Miss X unclothed and each of the three
defendants having intercourse with her on the front seat of the Mazda
against her will. The medical evidence must be regarded as neutral;

 (3)

D1 and D3 were convicted of rape, and D2 of attempted rape. Section 34


of the Penal Code is not applicable;

 (4)

D1 was sentenced to 7 years' imprisonment, to begin at the end of


sentence in case No. 1512/84. D2 was sentenced to 5½ years, with effect
from July 20, 1984. D3 was sentenced to 4½ years, with effect from July
20, 1984;

 (5)
D1 and D2 were acquitted of the second charge although it was open to
the learned Judge to convict them.

CRIMINAL TRIAL

Ivan Leong (Deputy Public Prosecutor) for Public Prosecutor.


Accused in person.
ROBERTS CJ

Preliminary. The three accused are charged with the rape of a woman who is referred
to in the evidence as Miss X, though her real name is contained in the charges and
has been identified by the various witnesses as they gave evidence.

The first charge alleges that the three defendants raped Miss X at about 1.30 in the
morning on July 16, 1984 at Pantai Meragang, Muara. The second charge alleges that
Nasar (D1) and Suhaili (D2) raped the same woman later the same morning in a
house at Kampong Subok.

There were originally six young men who were thought to have been implicated in
these offences. In addition to these three defendants, Haji Morni bin Haji Mahrop
(P.W.5) and Tuah bin Haji Timbang (P.W.7), both of whom were called as prosecution
witnesses, were charged with these defendants, but released by the magistrate when
the prosecution offered no evidence against them. Jurol, a brother of D2, is also
named in the charge. However, the police have not been able to arrest him, although
they have searched for him.

During the course of the trial, the earlier


1986 2 MLJ 71 at 72
charge against the defendants, which accused them of raping Miss X at Meragang
Beach and at Kg. Subok, was altered, with leave, so that the three defendants face a
charge of rape at Meragang and only D1 and D2 face a separate charge of rape at Kg.
Subok.
General matters

Sitting alone without a jury or assessors, I have reminded myself of various matters
which, if I had been directing a jury, I would have explained to them in suitable detail.
 (a)

The Prosecution must establish its case to such a degree that I am


satisfied so as to be sure of the guilt of each accused.

 (b)

The evidence on each charge must be considered separately.

 (c)
The evidence against each defendant must be separately considered.

 (d)

The evidence of D1, who chose to testify, must be approached in the same
manner as that of any other witness. The unsworn statements of D2 and
D3 should be given appropriate weight.

 (e)

Corroboration of the evidence of the complainant ('Miss X') must be looked


for. It is open to me to convict in the absence of such corroboration, but
this is a dangerous course.

 (f)

That the evidence given by D1 is evidence both for and against D2 and
D3. The unsworn statements of D2 and D3 cannot be treated as evidence
against D1.

Evidence of Miss X

Miss X, the complainant in both charges of rape, is a woman of 23, who has been
married, has given birth to two children and has been divorced. Her evidence is, of
course, the cornerstone of the prosecution case and I must summarize it now.

She described how Suhaili (D2) called for her in a Mazda car just before midnight on
July 15. She said she had known him for about two years. He said he had something
important to tell her and invited her to go out with him in his car. So she did.

Suhaili first of all drove to the Gerai in Bandar Seri Begawan, where he had a
conversation with Nasar (D1) who was there with D3, Jurol, Morni (P.W.5) and Tuah
(P.W.7).

Suhaili (D2) then drove the Mazda to Muara followed by a Honda Civic car driven by
Jamil (D3). At Muara, Miss X dropped Suhaili (D2) outside Muara Camp and drove into
the camp to give a message to L/Cpl. Yussof, leaving D2 at the bus stop. When she
came out of the camp, she stayed in the driver's seat, because she thought that D2
had drunk too much and looked unsteady.

The Honda was then waiting at the bus stop. D1 got out of it, walked over to the
Mazda and asked Miss X to take Suhaili home.

She drove off in the Mazda and saw the Honda following her. She went towards the
Muara filling station. Before she got there, the Honda passed her and cut across her
front so that she had to stop. D1 got out of the Honda, and led D2 from the Mazda to
the Honda where he left him. D1 returned to the Mazda, pushed Miss X to the
passenger seat and drove off. She asked where they were going and said "just
follow," which I take to mean "do what I say."

Miss X objected and asked to be taken home, but he ignored her and drove the car to
Meragang beach, followed by the Honda.
When they got to the beach, D1 said to her, "you had better surrender" which she
thought meant he wanted to rape her.

She asked him why he wanted to do that to her, but he pushed down the lever of the
passenger's seat in the Mazda, so that the seat fell flat.

D1 then took off all her clothes and his own and began kissing her body. She objected
to this and struggled. As D1 was undressing her, Jurol came and helped him by
pushing at her shoulders.

D1 opened her legs. She said that she fought back but that he put his private parts
into her private parts, using force. She was not willing and she was crying. She
pleaded with him, saying, "If your sister was treated like this how would you feel?"
She said, "Don't do that," a number of times.

After D1 had finished raping her, he got out of the car and lay on the bonnet, saying
to his friends, "What are you waiting for. Go ahead then."
1986 2 MLJ 71 at 73

Jurol, who is not charged, then raped her. As he did so, Tuah (P.W.7) came close to
the car. She appealed to him to help and take her home, but he said he was afraid of
Nasar (D1).

Jurol was followed by Jamil (D3) who also had sexual intercourse with her against her
will in the Mazda. She said she pushed him back.

While Jamil raped her, Morni (P.W.5) came close to the Mazda, but said he would not
help her as he was afraid of Nasar.

Jamil got out of the car and Suhaili (D2) got into it. She told D2, "What is the use of
me being alive if you have all treated me like that."

D2 asked her to suck him and she refused saying she wanted to go home. He pushed
her down, kissed her body and tried to put his private parts into hers. This he was not
able to do, because he failed to develop an erection. He used his finger to push open
her vagina and tried to push his organ into her but failed.

D1 asked Suhaili why he was taking so long. She managed to push D2 off and dress
herself, finding her clothing on the roof of the car. She got into the Mazda again with
Nasar and Suhaili. She asked Suhaili to take her home but he refused and drove her
to Kg. Subok, where Suhaili opened a door and let them into the house.

Nasar held her hand hard and told her to enter the house. He took her upstairs and
into a room where there was a mattress. She tried to get out from the window, but
Nasar pulled her back and told her not to try to run away.

Nasar next pulled off her skirt and clothes. She fought back and ran round the room,
but Nasar pushed her to the ground, pulled off her pants, bit her neck, pulled open
her legs and forced his way into her, although she tried to push him off, and did not
consent.

Soon after, D2 knocked at the door, which D1 opened. D2 came into the room and
took off his clothes.
She asked D2 to take her home and said, "Don't treat me like that".

She tried to put her clothes back on but Suhaili grabbed them away from her. She
pushed him away but he held on to her and masturbated until he was erect. He
pushed her to the mattress, opened her legs and entered her. She did not want him
to do this.

Afterwards they both dressed and left the building, where Tuah was waiting outside.

She got into a Datsun car with D1 and Tuah. She asked them to take her home but
D1 drove the car to a house near the airport which he entered. She got out of the car
while he was away and ran off but Tuah came after her and brought her back, on D1's
instructions. Tuah said he was afraid of Nasar, when she asked him to take her home.

The 1st defendant then drove her to near her house. She got out of the car and ran.
Shortly after, she went to report to the Bandar Seri Begawan Police Station but at the
gate she saw the 1st defendant in his car. He told her that if she reported the matter
to the police, he would kill her.

She was very frightened and took a boat to Labuan where she spent the night,
thinking about how to make a report. She returned on the 17th and went to the Dairy
Farm in Bandar Seri Begawan where she stayed till 6.00 p.m. She went home, took a
bath and reported to Bandar Seri Begawan Police Station. The officer there did not
record her complaint but sent her to Muara Police Station, where she made a report to
Sgt. Jaludin shortly after midnight.

After the rape, she cleaned herself with a swab and some antiseptic, as she was afraid
of getting a disease from intercourse with the various men.

She said she had known Suhaili for two years before the evening in question and had
been friendly with him as he had sponsored her passport. She had met Jamil two days
earlier. She had not met Nasar, Morni or Tuah before.

She had not had sex with any of the accused before the morning of July 16.
Evidence of Two "Independent" Witnesses

The prosecution's case on the first charge does not rest wholly on the evidence given
by the victim (Miss X). It is strongly supported, if they are believed, by that of the two
eye witnesses of the rape, Haji Morni bin Haji Mahrop, aged 20 (P.W.5) and Tuah bin
Haji Timbang, aged 27 (P.W.7).
1986 2 MLJ 71 at 74

On the second charge however, the prosecution has to rely on that of Miss X alone,
since P.W.5 went home after the incident on the beach and Tuah says that he waited
outside that house at Kg. Subok and did not know what was happening inside it.

P.W.5 and P.W.7 were both at the Gerai, late on the evening of July 15 with D1, D3
and Jurol, when D2 appeared in a Mazda car, accompanied by Miss X.

It was suggested by Suhaili (D2), whom they knew, that the five men should follow
the Mazda, which they did, to Muara in D3's Honda. When they arrived, they found D2
alone, outside Muara Camp waiting for Miss X. Soon after she emerged in D2's car,
picked him up and drove away. After a while, D1 asked D3, who was driving the
Honda, to overtake the Mazda and stop it. D3 did so, whereupon D1 got out, and
climbed into the Mazda, telling the others to follow him. D2 joined the others in the
Honda.

P.W.5 described how, when the two cars reached the beach, all of them got out of the
Honda and went towards the Mazda, where Miss X was raped by the three defendants
and Jurol.

P.W.5 said that he remained three feet away from the Mazda and wanted to see what
was happening. He took no part in raping her and gave no assistance to those who
did. He admitted that he did not try to stop the rape because he was afraid of being
beaten up by D1. He did not know that anyone wanted to rape her until all got to the
beach and started to do so.

P.W.7's version of events is essentially the same as that given by P.W.5. His evidence
is also to the effect that D3 was driving the Honda and D1 was driving the Mazda,
alone with Miss X, when they reached the beach.

P.W. 7 was about two feet away from the Mazda, watching Miss X being raped
through the open doors. He was too frightened of being beaten up to take any action
to help the girl. He confirmed that he took no part in the rape and did nothing
whatever to help those who did rape Miss X. Nor did he realize that rape was intended
until he arrived at the beach and saw it happen.

I accept that neither P.W.5 nor P.W.7 did anything to assist those who raped Miss X
and that they had no reason to believe, before they reached the beach and saw D1
taking off Miss X's clothes, that anything wrong was likely to occur. At worst, they
were interested and passive, if weak-minded spectators who took no part in the
sexual assaults on Miss X and never intended to do so.

This conduct is not to their credit, but merely watching, without encouragement or
help, does not make a watcher into an accomplice.

I find that P.W.5 and P.W.7 were not accomplices, and that their evidence, if
accepted, can amount to corroboration of that of Miss X.
Medical Evidence

I must regard the medical evidence as neutral.

Dr. U.M. Lister, Specialist Gynaecologist at the RIPAS Hospital, examined Miss X at
0215 on July 18, 1984, which was about 48 hours after the rapes were alleged to
have taken place.

The doctor found a 1½′ bruise on the side of the neck, a mark 1/18′ long on the left
forearm and a ½′ mark on the left knee. There were no injuries or marks on chest,
abdomen or lower back.

Vaginal examination showed a loose vagina such as would be expected for a woman
who has had children, as Miss X had done before her divorce.

The doctor's opinion was that a woman who had given birth might show no signs of
being raped, even if some force had been used. She found no evidence of any trauma
in that area.

The absence of sperm from the swabs taken from Miss X was to be expected 48 hours
after coitus, as all sperms are likely to disappear in this time even if the victim had
not washed or cleaned herself, as Miss X asserted that she had done with a swab and
some native disinfectant.

The three small marks or bruises found on Miss X, at the neck, wrist and knee did not
suggest any pattern of conduct to the doctor.

So there was nothing in the physical examination of Miss X which lends support to her
evidence – nor indeed anything which weakens it.

I therefore discount it; as amounting to any corroboration of Miss X's story.


1986 2 MLJ 71 at 75
Defence (1st Defendant)

Nasar (D1) elected to give evidence, Suhaili (D2) and Jamil (D3) to make an unsworn
statement from the dock, having been warned twice that the weight to be attached to
an unsworn statement would be less than to evidence on oath which has been subject
to cross-examination.

D1 testified that he joined D2, D3, Jurol, Morni and Tuah at the Padang after 9.00
p.m. on the evening of July 15. Suhaili left them saying he would meet them later at
the Gerai.

D1 went there with the others; and Suhaili (D2) and Miss X arrived in a Mazda car
driven by D2. Miss X asked them to follow her to Muara where there was a party at
the flotilla camp. So D1, D3, Jurol, Morni and Tuah got into a Honda car, driven by
D3, which followed the Mazda.

At Muara, they found D2 on his own at a bus stop near Muara Camp. D1 got out of the
Honda and suggested to D2 that he should go home. D2 asked him to wait. After half
an hour Miss X arrived and said there was no party, whereupon D1 suggested that
they drove back. She drove the Mazda away with the Honda following behind.

At Kota Batu, the Mazda stopped as did the Honda. The 1st defendant got out of the
Honda. The 2nd defendant came out of the Mazda and told him that Miss X wanted to
meet him, so he went to the Mazda and got into the passenger seat.

The Honda drove off first, followed by the Mazda, to Meragang beach where both cars
stopped.

When they arrived there, Miss X called him out of the car and sat on the bonnet with
D2 and Tuah. There then followed a general conversation, during which Miss X asked
him to beat up one of her friends.

The party was on the beach for about 15 minutes only. During this time nobody had
intercourse with Miss X and nobody made any physical advances to her.

When they left the beach, D2 drove the Mazda to Sumbiling, with Miss X, Tuah and
himself. There, Tuah left the Mazda and got into a Datsun, belonging to D1, and
followed the Mazda, driven by D2 to a house near Kg. Subok. The house was still
under construction. D2 was working on it and knew how to get in.

D1 had said that as it was so late, he wanted somewhere to sleep for the rest of the
night before returning to his home at Seria and D2 had suggested that they go with
him to a place he knew.

At Kg. Subok, D1, D2 and Tuah went into the houses with Miss X. He slept in one of
the upstairs rooms with Tuah. D2 and Miss X went to another room together.

While they were in the house, he did not have intercourse with Miss X, nor did he try
to do so. Nor did he see anyone else doing so.

D1 left in his car with Tuah and Miss X at about 6.00 a.m. and drove to the house of a
relative. He left Tuah and Miss X alone in the Datsun for about five minutes. When he
came out of his relative's house, he drove her home. She got out of the car and
disappeared. He did not see her again until after he had been arrested, when he saw
her at Bandar Seri Begawan Police Station.

He repeated that neither he nor anyone else in his presence had had sexual
intercourse with Miss X that night with or without her consent. And added that if he
had raped her, there would have been marks on her body.

When asked why Miss X should fabricate such a terrible story against him, he said
that Miss X had a gang of girls with whom he had had trouble when one of them
cheated him out of a gold chain.

So far as Morni was concerned, he had not met him before and would only suggest he
was drunk on the evening of July 15.

Tuah had been a friend of hers but had a grudge against him and Tuah and his group
had beaten him up previously.
Defence (2nd Defendant)

Suhaili (also known as Suhil or Suhai) in his unsworn statement described how he met
Miss X in the Dairy Farm by chance on the afternoon of July 15. She asked him to
come and see her that evening at her house as she had something to talk to him
about.

During the evening, after he met D1 and D3 at


1986 2 MLJ 71 at 76
the Padang, he remembered Miss X's invitation and went to her house in his car.

When he arrived, she asked him to take her to Muara, where there was a party in the
camp. He agreed to go and she drove his Mazda car. They stopped at the Gerai,
where Miss X told D1 they were going to a party at Muara.

When the Mazda arrived at Muara, Miss X left him at the bus stop while she went into
the camp to find out about the party. Before she returned, half an hour later, D1 and
the others arrived in the Honda. Miss X arrived back and said there was no party, so
D1 suggested they should go home.

Miss X drove the Mazda away, with him as passenger. After a while, she said she
wanted to discuss something secret with D1 and stopped the Mazda. He got out,
saying he did not want to get involved in that discussion, and went to the Honda,
which drove off to the beach, with the Mazda following.

When the cars stopped on the beach, he got out of the Honda and went to the Mazda,
where he sat on the bonnet and had a conversation with Miss X. Tuah and D1 joined
them and Miss X asked D1 to beat up a girl named Zaini. He suggested they should go
home and drove away in his Mazda to Bandar Seri Begawan to pick up D1's car, a
Datsun. Tuah got out of the Mazda and drove the Datsun behind the Mazda. He (D2)
took them to a house at Kg. Subok, which he could get into because he was working
there.

He did not rape Miss X in the house. She asked him to "play with her" but he refused
because she had given him syphilis when she had had intercourse with him before.
She became angry and told him, "You make me feel ashamed."

The next morning she refused to accompany him but went off with D1.
Defence (3rd Defendant)

Jamil, in his unsworn statement, described how he was at the Gerai on the evening of
July 15 with Jurol, Morni and D1 waiting for a boat which would take them to listen to
a band, when Miss X arrived, driving a car. D1 asked her where she was going. She
said there was a party at Muara.

He (D3) went to get his Honda and drove it to Muara, where they found D2 at a bus
stop. When Miss X arrived there, half an hour later, D1 got out of the Honda and
suggested that Miss X should take Suhaili (D2) home.

On the way back towards Bandar, Miss X, who was driving, stopped the Mazda. D1
went from the Honda to the Mazda and D2 changed from the Mazda to the Honda.

Both cars went to the beach, where D2 got out of the Honda.

He (D3) did not see anything happen on the beach, though he was there for 15
minutes, after which he got back into his car and returned home.
Credibility of Miss X

As in almost all sexual cases, the credibility of the victim is the most important single
issue to be determined.

Miss X, who is 23, gave her evidence in a calm and assured manner. She did not seem
to be unduly disturbed by questions of an intimate or embarrassing nature. She did
not seem to be a woman who would easily panic or lose control of herself.

When deciding whether or not I could accept her evidence, I considered various
matters which might lead me to doubt her honesty or reliability.

It might seem as if Miss X was taking something of a risk by going out at midnight
with a young man. But I accept her explanation that she trusted him, that she was
grateful to him for acting as her sponsor, and that she had no reason to expect that
she would be subject to any sexual advances.

I give attention to the medical evidence, which showed no marks of any significance
on her body, such as might have been expected if she had put up a vigorous fight,
save perhaps for a mark on the neck which she said was caused by D1 at the house,
not to her resistance on the beach.

Her explanation was that she was pressed down by her shoulders by one of the man
and that her hands were held, either by the man raping her or by one of the others
each time she was raped, so that she was unable to struggle very much.
I noted that her clothing, which she handed to the police on July 19, is not damaged,
except that
1986 2 MLJ 71 at 77
the bar, into which the waist buckle of her trousers fits, was missing.

It is not unknown for serious charges of a sexual nature, particularly allegations of


rape, to be fabricated for a variety of reasons. Indeed, that is why the law requires
corroboration of a victim's evidence. D1 suggested that Miss X had lied against him
because he had had trouble with her gang of girls a few weeks before. D2 said that he
had refused her invitation to have intercourse with her because she had given him
syphilis and that she was angry. D3, whom Miss X said she had only met two days
before, offered no explanation.

The offences took place between about 1.30 and about 6 o'clock on July 16. Miss X
appears to have made no complaint to anybody until she reported to the police at
Bandar Seri Begawan Police Station on the evening of July l7th. She was immediately
sent to the Muara Police Station, as her main complaint appeared to relate to an
incident in that area.

I admitted evidence of this complaint, taking the view that, at the time she made it to
Sgt. Jaludin, at about 0030 on July 18, there was no police investigation in progress,
since an investigation does not commence until the police have received information
relating to an offence, and a police officer has reason to suspect that an offence has
been committed. So a first report to the police precedes an investigation and is not
rendered inadmissible by section 117(1) of the C.P.C.

I note in passing that section 117 in general seems to impose unnecessary restrictions
on police officers and may sometimes also produce unfairness to an accused, and I
suggest that consideration might be given to modifying it on the lines of the English
law on the subject.

The complaint, which Miss X made, is in far less detail than the evidence which she
gave, but it does not differ from it in any important respects.

Miss X gave an explanation of why she did not make a report much earlier. She said
she made her way to the Police Station to do so, soon after D1 took her home on the
morning of July 16, but she was seen by him and threatened. She felt frightened and
went to Labuan for the night. Next day she returned. She sat in the Dairy Farm for
some time thinking about how to report, before going home, taking a bath and going
to the Police Station.

I have considered whether the interval between the incidents and her report might
indicate not fear, or shame or hesitation, but a period during which she was deciding
to make up her story against the defendants. But I do not believe that this was the
case.

Many factors are at work in the decision of a victim to report a rape, among them,
perhaps, are shame at what happened, anxiety that her reputation will be ruined,
however innocent she may have been, apprehension at the reactions of her family and
friends and fear of reprisals by those responsible. A weighing of these matters may
well cause delay in making a complaint. I accept her explanation of how it was that
she took so long to report what had been done to her on the early morning of July 16.
I do not believe that she carefully fabricated, as the defence alleged, such grave
charges against four innocent young men. Such a course would also mean that she
would have had also to have persuaded Morni and Tuah to support her false story and
there has not been any suggestion that this might have occurred.

In the end, having given careful thought to these factors, to her general manner in
the witness box and to the contents of her evidence, I find her to be a credible
witness, in relation to her version of events on the night of July 15 and 16.

Corroboration

I have already noted that it is dangerous to convict on the uncorroborated evidence of


the complainant in a sexual case and I have therefore looked for such corroborative
evidence.

I have already said that I discard the medical evidence, which lends no support to
Miss X's story.

Similarly, I discount as corroboration the complaint which she made to the police. This
can be taken into account only in considering the consistency of the story she has told
and is relevant only to her credibility.

In relation to the first charge, there is abundant supporting evidence from both Morni
and Tuah that all three defendants were present at the beach, where the first offence
is said to have been committed.
1986 2 MLJ 71 at 78

Each of them, with only such minor discrepancies and variations as might be expected
of witnesses recalling a somewhat confused and shocking series of events, gave clear
evidence of seeing Miss X unclothed and of each of the three defendants, plus Jurol,
having intercourse with her on the front seat of the Mazda against her will.

So far as the second charge is concerned, there is no corroboration of her story since
Tuah said that he saw nothing of what went on, after they reached the house at Kg.
Subok.

When approaching the evidence of P.W.5 and P.W.7, that is Morni and Tuah, I
reminded myself that, although they were not accomplices in law, I must consider
their testimony with suspicion, since they were earlier charged jointly with the
defendants and it might be said that they had fabricated or exaggerated their
evidence in order to attempt to evade prosecution themselves.

D1 suggested that Morni (P.W.5), whom he had not met before, must have been
drunk and that Tuah, whom he said was a friend of his, had a grudge against him,
even though they had gone out together on July 15. Neither D2 nor D3, in their
statements, suggested any reason why Morni (P.W.5) and Tuah (P.W.7) should have
told such damaging lies against them.

Nor can I see any reason why they should have done so. Having heard the evidence
from Morni (P.W.5) and Tuah (P.W.7), I found them to be nervous and fairly simple
witnesses, who were doing their best to tell the truth when describing a situation
which did not show either of them in very good light and I accept their evidence as
reliable.
Defence

I have set out in some detail the substance of the evidence given by D1 and of the
unsworn statements of D2 and D3 and I have asked myself whether they raise in my
mind any doubt as to their guilt.

So far as D1 is concerned, I had the benefit of being able to observe the manner in
which he gave his evidence. He seemed to me to be a man of forceful character, who
might well dominate a group of young men, as indeed the prosecution evidence
suggests. I judge him to be capable of the ruthlessness, violence and insensitivity
which have attributed to him.

I did not believe the substance of his evidence.

Now were any doubts raised in my mind by the unsworn statements of D2 and D3,
which were not subject to the test of cross-examination and to which, in any event, I
would have given less weight than to evidence on oath.

Neither the contents of these statements, nor the manner in which they were given,
impressed me and I reject these statements as untrue.

Under section 375 of thePenal Code, the prosecution must prove that the accused –
 (a) had sexual intercourse with the woman;
 (b) in circumstances falling under one of five descriptions, among them it was
o (i) against her will;
o (ii) without her consent;
o (iii) with her consent, when her consent has been obtained by
putting her in fear of death or of hurt.

The note to the section says that penetration is sufficient to amount to rape – so that
it is not necessary for there to have been any ejaculation by the man.

I accept Miss X's evidence that D1 and D3 penetrated her against her will and without
her consent on the beach, and that they did so in spite of her struggles, protests and
crying. They could not have thought that she was consenting.

I find her evidence to be supported in its essentials, both that she was raped and that
the defendants were implicated in it.

I make the same findings against D2 subject to the question of whether what he did
amounted to rape or attempted rape.

This is not one of those cases in which the defence is that the woman consented. The
defence is that nothing of the kind described by the girl took place at all and that
nobody made any physical advances to her, nor had sexual intercourse with her, with
or without her consent on the beach or in the house. As indicated I believe her, and I
disbelieve them and I convict both D1 and D3 on the first charge.

Rape or attempted Rape by D2

As to D2, however, the question arises as to whether he achieved penetration of Miss


X on the beach.
1986 2 MLJ 71 at 79
She gave evidence that D2, having taken off all his clothes, asked her to suck him,
which she refused to do. He then pushed her down, kissed her body and tried to put
his private parts into hers. He was not successful because his penis did not erect.

She added that his private parts touched the edge of her vagina and that he used his
finger to try to push his organ into her but was unsuccessful. D1 then asked D2 why
he was taking so long and she then managed to push D2 away.

Both Morni and Tuah testified that D2 moved his body up and down on top of Miss X.
From this they must have inferred that he was having intercourse with her, though
they are unlikely, in such circumstances, to have been able to see where his penis
was.

I am not satisfied that D2 achieved penetration of Miss X, though I am sure that his
penis touched the outside of her vagina, and that he intended to have intercourse with
her, knowing that she did not consent.

Not only did he intend to rape her, he undressed himself, lay on top of her, and tried
to push his penis into her. He only failed because he was unable to achieve an
erection.

It may be, although this is speculation, that his failure was caused by the amount of
drink which he had taken earlier in the evening, though I reject any suggestion that
he may have been too drunk to appreciate what he was doing or to form the
necessary intention to commit the crime of rape or of attempted rape.

I find that his acts were sufficiently proximate to the complete offence of rape to
amount to an attempted rape.

Section 34

Counsel for the Public Prosecutor submitted, however, that D2 could properly be
convicted of the full offence of rape, by reason of the provisions of Section 34 of the
Penal Code which says that where a criminal act is done by several persons, in
furtherance of the common intention of all, each is liable for that act in the same
manner as if the act were done by him alone.

If there was evidence that there had been any agreement between the three
defendants to take Miss X to the beach and rape her, or that D2 had actively assisted
D1 or D2 or Jurol in raping Miss X, I think the section would avail the prosecution.

But there is nothing to suggest that anyone except D1 had thought about raping Miss
X until they reached the beach. Indeed it seems likely that D1 was the moving spirit,
and that only after he had finished with Miss X and asked the others to take a turn did
it occur to them to do so.

When D2 tried to rape the girl, he was not, as I see it, furthering any common
intention but satisfying his own desire only. It is worth nothing that he was the last of
the four to do so.

There was no evidence that he had assisted any of the others, though Jurol and Nasar
seem to have done so.

I, therefore, remain in doubt as to whether D2's actions fall within section 34 and I do
not convict him of the full offence of rape but of attempted rape under the first
charge.
The second charge

When convicting the three defendants under the first charge, I reminded myself that it
was dangerous to convict on the uncorroborated evidence of a complainant in a sexual
case. I looked for corroboration and found it in abundance on the first charge.

The only evidence which supports her evidence on the second charge is that of Tuah,
to a very limited extent. He says that he saw her enter the house at Kg. Subok with
D1 and D2 after they had driven to the house from the beach.

When they entered the house, he said that Miss X was not crying, struggling or
shouting, though she seemed to be distressed and was being firmly held by D1 as she
entered the house.

Thus Tuah's evidence does no more than put D1 and D2 in the house with Miss X,
during the period when she says she was again raped by them.

D1 says that he spent the night in a room with Tuah and had nothing to do with Miss
X in the house.

D2, in his statement, admits that he slept in the same room as Miss X but denies
having physical contact with her, though he says that he rejected her advances.

Nor can any corroboration be found from anything which was said or which occurred
the following morning, when Miss X was driven home by D1.
1986 2 MLJ 71 at 80

It might perhaps be argued that it was less likely that Miss X, having been worn down
by her earlier experiences, could renew her resistance in the house, since on her own
evidence, D1 and D2, when they raped her in the house, received no assistance from
anybody else.

I should make it clear that in coming to the conclusion which I do on the second
charge, I do not, in any way, disbelieve Miss X's evidence either on the first charge or
on the second charge. But it is dangerous to convict on unsupported testimony from a
victim. There is no such corroborative evidence on the second charge and although it
is open to me to convict, nonetheless, I am not prepared to adopt such a course in
the light of the evidence on the second charge and of the circumstances surrounding
it.

Accordingly I acquit both D1 and D2 of the second charge.

Sentence

This is a disgraceful crime, as gang rape always is. It involves for the unfortunate
victim, fear, shame, brutality, damage to her reputation, and the considerable ordeal
of having to give evidence, in this instance on two separate occasions, and being
questioned at length and in detail on matters of an intimate nature.

This is at least the fourth occasion in 1984 when young men had been convicted
of gang rapes on girls. The sentences in the other cases are all ranged between 7
and 8 years and, in those cases, none of those convicted (and they were all convicted
after trial) had any previous convictions. These sentences could, therefore, be said to
have set a normal standard sentence which should be considered in rapes of this
nature, even where the convicted persons were as young as 16.

For what it is worth in favour of the defendants, I accept that this is not a gang
rape that was carefully planned before it was executed.

So far as Nasar is concerned, I accept that it was only when he took over the driving
wheel and drove Miss X to the beach that the intention to have intercourse with her
arose in his mind. I will infer in favour of D1 and D2 that it was only when they saw
D1 and Jurol stripping the girl, that they decided to join in.

D1 is nearly 24 and he already has 12 convictions, the first of these when he was 16,
when he was sentenced to six months' imprisonment for theft; in 1979, he received 9
months for a crime of violence, voluntarily causing hurt; in 1982, he was sentenced to
10 months' imprisonment for unlawful carnal knowledge of a girl under the age of 16;
in 1984, he received a sentence of three months' imprisonment for an offence under
the Misuse of Drugs Enactment.

I regard him as the ring leader and the dominant partner in this gang rape. Without
him, I suspect that there might have been no rape at all.

For these reasons, bearing in mind his leading role and his very bad record, he must
receive a heavier sentence than the others, and will go to prison for seven years. This
sentence will begin at the end of the sentence imposed under the conviction for the
Misuse of Drugs Enactment, that is Case No. 1512/84.

D2 was convicted only of an attempt. He is aged 26 and he has one previous


conviction almost five years ago for theft in a dwelling house. The maximum sentence
for an attempt under section 511 of the Code is half the longest term which can be
imposed for the full offence.

This indicates that in ordinary circumstances an attempt should be treated as being


less serious than the full offence.

As against this, D2 knew her quite well and had been friendly with her, and was
trusted by her so that his conduct could be said, in this respect, to be worse than that
of D1, who had never met her before, and D3, who hardly knew her at all.

That he failed to rape her was due solely to his physical inability at the last minute,
and not to any change of mind.

Giving weight to these factors and in particular to my view that he was not the ring
leader, I sentence him to five and a half years' imprisonment, to run from July 20,
1984.

D3 is the youngest of the three. He is only 21 and he has only been in Brunei since
July 7. So far as is known, he has no previous convictions and I think he joined in
rather than played any leading part in the rape.

I am giving him due allowance for his clean record and his age. I sentence him to four
and a half years' imprisonment. That will also run from July 20, 1984.
Sentenced accordingly.