The prosecution must prove its case beyond a reasonable doubt, and a mere denial by the appellant does not create reasonable doubt where corroborated evidence exists.

Introduction

[1] This is an appeal by the appellant against the decision of the Court of Appeal dated 7 March 2014 which allowed the prosecution's appeal against the decision of the High Court. The appellant was convicted of the offence as charged and sentenced to a term of five years imprisonment. The prosecution cross-appealed on sentence.

[2] The charge preferred against the appellant reads:

"Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 dan 4.30 petang di alamat Unit 11-5-1, Desa Damansara Condominium, No 99 Jalan Setiakasih, Bukit Damansara, Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur, telah dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari bin Azlan dengan memasukkan zakar kamu ke dalam duburnya; dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan."

English translation:

["That you, on 26 June 2008 between 3.01pm to 4.30pm at Unit 11-5-1, Desa Damansara Condominium, No 99, Jalan Setiakasih, Bukit Damansara, Kuala Lumpur in the Federal Territory of Kuala Lumpur, did intentionally commit carnal intercourse against the order of nature with Mohd Saiful Bukhari bin Azlan by inserting your penis into his anus; and thereby have committed an offence punishable under s 377B of the Penal Code ."]

[3] The offence of carnal intercourse against the order of nature is governed by s 377A and in this case punishable under s 377B of the Penal Code . For ease of reference, these two sections are reproduced below:

"Carnal intercourse against the order of nature

377A. Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

Explanation - Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.

Punishment for committing carnal intercourse against the order of nature.

377B. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping."

[4] Section 377A of the Penal Code deals with two specific deviant forms of sexual behaviour, namely sodomy and oral sex. In the explanation to the section, it is stated that penetration alone is sufficient to constitute the sexual connection necessary for the offence. No mention is made of consent. Thus consent is not an ingredient of the offence and is not accepted as a defence (Mallal's Penal Law, 2002, 2nd edn).

The Facts

[5] The facts relevant to this appeal as narrated by the trial judge are briefly as follows: Mohd Saiful Bukhari bin Azlan, the complainant (PW1), testified that he started working as a volunteer with the appellant in early March of 2008. From the end of April 2008 PW1 then worked as the personal assistant to the appellant. His duties, amongst others were to arrange for meetings, to communicate with agents and Members of Parliament from the appellant's party, to file confidential documents and to oversee the appellant's personal handphone. He also assisted the appellant's Chief of Staff, Ibrahim bin Yaacob (PW24) to prepare work schedules as instructed by the appellant.

[6] On 26 June 2008, on the appellant's instruction PW1 went to Unit 11-5-1, Desa Damansara Condominium, No 99, Jalan Setiakasih, Bukit Damansara, Kuala Lumpur (Unit 11-5-1). PW1 took with him some documents given to him by PW24 to be delivered to the appellant.

[7] PW1 left the office at about 1.45pm, and drove to Desa Damansara Condominium in a Fiat van bearing registration number W