The court established that the timing of an offence is not essential to a rape charge if it doesn’t prejudice the accused's defense, and affirmed the conviction based on solid evidence including DNA analysis.

Introduction

[1] Mohd Hanif B Kassim (the accused) filed an appeal against the decision of the Sessions Court Judge dated 4 May 2014. The accused was convicted for the offence of rape punishable under s 376(1) of the Penal Code , and he was sentenced to eight years imprisonment. The prosecution was not satisfied with the sentence imposed on the accused by the learned judge and had filed a cross-appeal to this Court and sought a heavier sentence to be imposed on the accused.

[2] On 19 January 2015, this Court dismissed the accused's appeal and allowed the prosecution's cross-appeal against sentence from the decision of the Sessions Court. This Court substituted the Sessions Court's sentence of eight years imprisonment with ten years imprisonment and one stroke of whipping. Below are the reasons for the decision.

The Salient Facts

[3] The charge against the accused is as follows:

Bahawa kamu pada 20hb Jun 2010 hingga 28hb Jun 2010, jam lebih kurang 2.00 pagi hingga 4.00 pagi, di ladang kelapa sawit Harvard, Bedong di dalam daerah Kuala Muda, di dalam Negeri Kedah telah merogol xxx KP: xxx yang berumur 14 tahun 7 bulan. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 376(1) Kanun Keseksaan.

[4] The prosecution had called eight witnesses in the trial, and the main evidence of the prosecution's case came from SP6, the victim, and SP8, the science officer.

[5] On or around end of June 2010, around 2.00am, the accused and the victim (SP6) went to an oil palm plantation in Bedong, Kedah. They stopped near a temple (tokong) at the plantation and sat next to a palm tree. The victim told the Court that the accused held her hand and took off his pants. The victim also told the Court that she warded off the accused's hand. However, the accused forced the victim to remove her panties. Later, the accused forced himself on the victim and sexual intercourse took place, which lasted approximately five minutes, according to the victim's evidence. The victim had described in examination-in-chief that she saw and felt the accused's private part penetrated into her vagina (see p 69 appeal records). Later, the accused sent the victim home and told her not to tell anyone. At the time of the incident the victim was 14 years and 7 months of age. This fact was not disputed. Several months later, the victim's appearance seemed abnormal for her age. The victim's mother (SP1) took her to a clinic and discovered that the victim was 34 weeks into her pregnancy. The victim gave birth to a baby boy on 28 March 2011. The accused was arrested on 24 February 2011.

[6] A DNA profiling test was conducted by one scientific officer, Asfarina Bte Jamal Mohideen (SP8), from the Department of Chemistry, Malaysia. The object of the DNA test was to verify the genetic locus of the baby boy, the victim and the accused. SP8 explained in Court that the result of the DNA profiling report (P8) revealed that the accused was the biological father of the baby boy, and the probability of paternity was 99.9999% as calculated based on the Malaysian Malay population database (see p 124 of appeal records).

[7] At the end of prosecutio