PP v Mohd Ridzwan bin Md Borhan [2004] 5 MLJ 300

This case concerns more towards consent of victims in the acts of sexual intercourses. The facts of the
case are as follows:
In a durian plantation shed, the accused and the complainant (aged 18 years old) laid down side by
side with the accused’s face touching the complainant’s cheek. The complainant alleged that she did
not like that but did not try to move away, but stayed at the shed. The complainant did not escape the
shed when she had the chance while the accused was burning rubber to create smoke.
The accused later embraced and kissed the complainant, and they later had sexual intercourse, not
once, but twice. Despite the complainant alleging that she had resisted and threatened to lodge a
police report, it was found that her clothes were not torn, and medical evidence indicate that the tears
in the complainant’s organ was due to ‘peaceful love affairs’.
The court discussed the issue of consent and corroboration. It was held that consent may not be
ascertained by direct evidences, but have to rely on surrounding facts of the case. On the other hand,
corroboration means confirmation or support towards the allegation made.
Both of these issues are shown in the case when the surrounding facts of two sexual intercourses, and
that her clothes were not torn, and that she did not escape when she had the chance, proves that there
was consent to the sexual intercourse. Additionally, corroboration was found to be established by the
medical evidence that the tears in the complainant’s organ was due the combined consensual conduct
of sexual intercourses by two reasonable adults.
Thus, it was held that the facts and circumstances are more consistent with the argument that there
was consent on the part of the complainant for the sexual intercourses. Therefore, it is essential to
look at the surrounding circumstances to arrive as nearly as possible at the true position. It was also
held that it is a rule of practice having the force of law that in sexual offences such as rape, the
evidence of the complainant must be corroborated. The accused was then acquitted.

May focus on the issue of consent, and corroboration.

Bunya ak Jalong v PP [2015] 5 MLJ 72

This case focuses on the actus reus, where it was held that penetration must be of the accused’s penis
and no others. (This is according to the law being in force at that time.) The facts of the case are as
follows:
The accused was charged of raping the victim (aged below 15 years) in 2011. Subsequently, the
victim gave birth to a baby boy. It was indivated by DNA evidence that the accused was the baby’s
father, proving that the conception has occurred due to actions between him and the victims.
However, the accused argued that he never had sexual intercourse with the victim, and that there was
only insertion of his and her fingers smeared with his semen into her organ.
The accused further contested that he never had sexual intercourse with the victim, but merely
inserted his finger into her vagina with his semen, causing conception to occur. One PW8 was called
to the court to testify the possibility of conception occuring by such manner, though low but is
existent.
Thus, the court set asde the conviction, as such insertion of finger did not constitute rape. It is to be
noted that after the case was decided, Section 377CA included the sexual offence of inserting any part
of the body to another person’s sexual organ without her consent will be punished, to prevent such
case decision from happening again.

Q 4.2 Bella, a 17-year-old student went into the school toilet to change from her sports attire
to her college uniform. She entered a cubicle. Shortly after she entered and shut the cubicle
door behind her, she heard a knock on the door, and thinking that it was one of her friends,
she opened it. She saw Jack, he pushed his way in and locked the door. When she started to
scream, he held her throat tightly with one hand and threatened her with the knife he held in
his other hand. He warned her that he would kill her if she screamed, and he raped her.
Throughout the ordeal Bella was in constant fear of being stabbed by the Jack. Jack left Bella
when it was over. Can Jack be charged with rape?
Issue:
Whether Jack can be charged and convicted under S.375 of the Penal Code? (don’t charge
person under definition which is 375, charge under a section with punishment which is 376)

Law:
S.375(c) of Penal Code - A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the
following descriptions:
(c) with her consent, when her consent has been obtained by putting her in fear of death or
hurt to herself or any other person or obtained under a misconception of fact and the man
knows or has reason to believe that the consent was given in consequence of such
misconception.
(b) without her consent.

S.376(1) Subject to subsections (2), (3) and (4), whoever commits rape shall be punished
with *imprisonment for a term which may extend to 20 years and shall also be liable to
whipping.
S 376(2) Whoever commits rape on a woman under any of the following circumstances
(b) at the time of, or immediately before or after the commission of the offence, puts
her in fear of death or hurt to herself or any other person.
shall be punished with imprisonment for a term of not less than *10 years and not
more than thirty years and shall also be liable to whipping.

S.90 of Penal Code - A consent is not such a consent as is intended by any section of this
Code—
a) if the consent is given by a person under fear of injury, or under a misconception of
fact, and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception.

In the case of Chiu Nang Hong v PP, the victim was in fear when the accused warned to
strangle her if she shouted. She dared not to move when the accused took off her clothes,
carried her to bed and had the sexual intercourse. The court held that the consent obtained
invalid as it was given when the victim was in fear of death or hurt.

Referring to the case of Public Prosecutor v Teoh Eng Chan, the accused in this case was
taken to a quarry to have sex with several of the men there. They argued that she had given
consent to have sex. The facts however indicated that the accused only agreed to have sex for
fear of gang rape. Also, she was in an isolated area with no means on calling for help or
escape. The accused also sprayed her with perfume to hide the fact that she was with men.
The victim also immediately made a police report. The court held that the facts all indicated
that the consent of the accused was not consent as it was given under a fear of injury.
Therefore, rape was established.

Application:

In this present case, despite the facts are silent about whether there was any
penetration or not, we can safely assume that there is penetration as it was mentioned that
Jack raped Bella. Bella was threatened by Jack, that he would kill her if she screamed when
he raped her, this show that the consent of Bella has been obtained by putting her in fear of
death or hurt to herself under S.375(c) of Penal Code. Jack cannot argue Bella had given
consent to have sex as consent is defined negatively in S.90(a) that consent is not consent if
given by a person under fear of injury and if the person doing the act knows or has reason to
believe that such consent was given in consequence of such fear. Hence, the consent
obtained invalid as it was given when the Bella was in constant fear of being stabbed and
killed by Jack throughout the ordeal.

Conclusion:

In conclusion, Jack can be charged and convicted under S.375 of the Penal Code as he
had rape Bella and the consent of Bella obtained was invalid as it has been obtained by
putting her in fear of death or hurt to herself. Jack can be punished with imprisonment for a
term which may extend to 20 years and shall also be liable to whipping under S.376 of the
Penal Code.

Main issue: Whether Jack will be charged with rape.

S 375 of the Penal Code, a man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the
following descriptions from (a) to (g). The Explanation explained the meaning of sexual
intercourse where it says that penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape. Therefore, we can understand that rape can only be
committed by a man against a woman where penetration must be proven.
There are a few elements that need to be fulfilled to establish rape. It includes the accused
must be man, penetration must happen and the limbs under S 375 must be fulfilled.
To fall under s375, it must be a man, having sexual intercourse, with a woman, under any of
the circumstances from (a) to (g).
Sub – issue 1: whether the accused here is a man.
S 10 of the Penal Code defines “man” as a male human being of any age. Here, the accused
in this scenario is called Jack. From the name, we can denote that the accused is a man.
Although the age of Jack is not stated in the facts, but it does not matter.
In Corbett v Corbett, the court held that the rape offence can only be done by a man. The man
and woman mentioned here must be a biological man and woman. The court will use
chromosome test to determine whether the parties are biological man and woman.
This shows that it must be a biological man who rapes a biological woman. The age of the
man is irrelevant.
Sub – issue 2: whether penetration happens between Bella and Jack.
In establishing a rape case, the penetration must be by the penis of the man. In Nasrul Annuar
bin Abd Samad v PP, the victim did not see anything that happened to her from the stomach
downwards. She just felt a penetration and presumed it was penis. The accused then appeal
since there is no evidence showing that it was the accused’s penis that penetrated the victim’s
private part and the appeal was allowed. (However, the court held that absent of semen does
not necessarily prove that no rape was occurred because penetration of penis is enough.
Nevertheless, present of semen will ease the proving of penetration was occurred) In Sidek
bin Ludan v PP, the court held that there must be penetration to constitute the offence of rape.
Even the slightest penetration will be sufficient. So long as penetration is proved but its depth
will not injure the hymen, it is sufficient to constitute the crime of rape too. This means that
even if the hymen is not rupture, the rape can be established. In Public Prosecutor v
Muhammad Rasid bin Hashim, the court held that it is not necessary that there should be
complete penetration of penis with emission of semen and rupture of hymen. Partial
penetration of the penis within the labia majora or the vulva or pudenda with or without
emission of semen or even an attempt at penetration is quite sufficient for the purpose of
the law. In PP v Mohamad Malek Ridhzuan b Che Hassan, the court held that the absence
of semen inside victim’s vagina did not mean there did not occur insertion of the
accused’s genital into victim’s vagina. The presence of semen was not a requirement by law
in order to prove the offence of rape. (However, if there was semen, it would be easier to
prove that penetration has occurred.) What was required is penetration, not ejaculation.
Here, the facts are not clear on what had exactly happened during the sexual intercourse
between Bella and Jack. However, the offence of rape will be established if it can be proven
that the penetration was done by the Jack’s genitals into Bella’s genitals which includes the
vagina and the vulva. Whether it was a full/partial penetration or with/without ejaculation, it
would not affect the establishment of the offence. The penetration cannot be by other objects
or body parts other than a penis. If these can be proven, then there is a penetration.

Sub – issue 3: whether any one of the limbs under S 375 is fulfilled. Teoh Eng Chan
This scenario is most likely to fall under S 375(c), where a sexual intercourse happens with
her consent, but the consent has been obtained by putting the victim in fear of death or hurt to
herself or any other person or obtained under a misconception of fact and the man knows or
has reason to believe that the consent was given in consequence of such misconception. The
Penal Code itself did not define what is a consent but define what is not consent in S 90. In
Chiu Nang Hong v PP, the woman was in fear when the man warned to strangle her if she
shouted. She did not dare to put up a fight because of his size. She just stood still, the man
took off her clothes, carried her to the bed and have sexual intercourse. In PP v Aling bin
Ayun, the man threatened to kill the pregnant lady with a chopper. The trouser belt of the
complainant was cut loose with the chopper by the accused. The woman tried to struggle but
failed. Sexual intercourse followed. The court held that she did not consent to the intercourse.
Augustine Foong v PP [1990] 1 MLJ 225 Held, a woman may submit to sexual intercourse in
the sense that she does not offer physical resistance, but this does not mean that she
consented.
The scenario is quite similar with the case of PP v Aling bin Ayun. Bella was in fear of death
because Jack threatened to kill her if she screamed. Furthermore, Jack was holding a knife in
his hand while he held Bella’s throat tightly with his other hand. Comparing the physic of a
man and weapon Jack is having, it is evident that Bella would be so afraid as she was still a
high schooler. There is a high possibility of death as Jack appeared to be aggressive. With
that, she gave in to Jack.
It may be argued that Bella consented willingly as she was the one to open the cubicle door.
But, we must take note that she opened the door because she thought that it was her friends. It
does not show willing consent for sexual intercourse with Jack. If she were to know that it
was Jack who knocked the door, she wouldn’t have open the door.

May also say 375(a), against her will, use case of PP v Nasar bin Ahmad. No consent as there
was resistance put up.

Next, we need to determine the two elements of crime for the rape offence to be established.
Sub – issue: whether the mens rea and actus reus of the crime is fulfilled. (not a requirement,
but if we do, get it right) If we wanna discuss, one or two sentences will be enuf.
In S 375, the provision is silent with respect to the mens rea requisite for the offence of rape.
According to Sweet v Parsley, mens rea will be implied into an offence where there is no
contrary intention by Parliament. Therefore, we can say that once the act of raping is carried
out, the mens rea is presumed. The actus reus of the crime is done when Jack raped Bella in
the toilet. Thus, both mens rea and actus reus is formed.
In conclusion, Jack could be charged for rape under S 375(c ). Jack will face punishment
under S 376(2)(b), where he shall be punished with imprisonment for a term of not less than
10 years and not more than 30 years and shall also be liable to whipping.