The conviction is deemed safe when supported by credible evidence despite the presence of counterarguments.

[1] This is an appeal by the Appellant against the conviction and sentence imposed by the Learned Sessions Court Judge and the notice of appeal to Court of Appeal is filed on 11 October 2017.

Brief Facts

[2] The Appellant was charged under s 376(1) Penal Code read together with s 511 of the . The Appellant was sentenced to seven years imprisonment and one stroke of whipping and a compensation of RM5,000 to be paid to the victim and in default, six months imprisonment.

The charge against the Accused is as follows:

"Bahawa kamu, pada 18 November 2015, lebih kurang jam 12.25 pagi bertempat di tepi jalan Kampung Serigau, Putatan, dalam daerah Penampang, di dalam negeri Sabah, telah cuba melakukan kesalahan merogol Stefy June Abd Singki No K/P 990612-12-6102 dan dalam percubaan itu telah melakukan perbuatan bagi melakukan kesalahan tersebut iaitu dengan membuka seluar dan mengeluarkan zakar kamu bagi tujuan memasukkan ke dalam kemaluan Stefy June Abd Singki dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah s 376(1) Kanun Keseksaan dan dibaca bersama s 511 Kanun Keseksaan"

[3] PW3 testified that the said incident happened on 18 November 2015 along Kampung Serigei, Putatan, Penampang where she was working as a part time waitress at Sutera Harbour shuttle bus at the Putatan bus stop. She walked towards Putatan traffic light headed for Lok Kawi. While waiting for her father (PW5), Abd Singki bin Peganantin to pick her up, the Respondent (Accused) approached her and offered her a lift for a certain amount of fare in a Perodua Kancil bearing registration no PFS3370. She accepted the offer when PW5 informed her that his motorcycle broke down. This was despite the victim's father told the victim to wait for him. The victim sat at the front passenger seat of the said Kancil car.

[4] Along the way, the Accused informed the victim that he needed to pick up his friend at Bataras junction and then into a small road before the Bataras supermarket. The Accused then said that his friend was not there and drove straight along the dark road. The Accused then suddenly halt the car and attempted to rape the victim. The Accused laid on top of PW7 and held her wrist tightly, then removed her trousers and underwear and inserted his fingers into the victim's anus few times. The victim fought back when there was an opportunity by scratching the Accused's right neck and biting his left check. Despite the victim's resistance, the Accused removed his trousers and pull out his penis and tried to rape the victim again. The victim then covered her vagina and pinched the Accused's penis. The Accused was in pain and stopped. He apologised and then proceeded to send the Accused to send the victim where the victim was dropped 50 meters from her house. Before going down, the Accused told the victim not to tell anyone.

The Conviction

[5] The Appellant submitted in his Petition of Appeal that the conviction against the Appellant is an unsafe one as the trial judge did not make a maximum evaluation as to the totality of the evidence adduced during the trial.

[6] Having perused the notes of proceedings from the Court's below together with the documentary evidence coming from the photographs, it is from my view that the testimonies are inconsistent and credible as the trial judge has considered the totality of the evidence.

[7] The focal point that the victim raised here are the injuries sustained by the Accused during the incident happened. The scratch marks and the biting marks that was done by the victim herself in her attempt to defend herself has resulted the Accused some facial disfigurement as to the cheek and neck. These are consistent with the victim's testimonies and pictures.

[8] The trial judge submitted that the Accused did