Abdul Malik Ishak J:

The appellant was charged in the Sessions Court, Johor Bahru ("trial Court") on two charges of raping a female minor aged 9 years 10 months (it should be 4 months) and, after a long protracted trial, the appellant was found guilty and he was convicted in respect of both charges. The trial Court sentenced the appellant to seven years' imprisonment with effect from 6 June 1993 on each of the two charges and both sentences were ordered to run concurrently. On an application by the appellant's Counsel, the trial Court stayed execution pending an appeal.

The charges against the appellant are as follows:

First Charge

Bahawa kamu pada bulan Mac 1991 di antara tarikh yang tidak diketahui di antara jam lebih kurang 2.00 petang hingga 6.00 petang di pondok kosong di ladang kelapa sawit Kampung Bukit Lintang di dalam daerah Kota Tinggi, di dalam negeri Johor, telah didapati merogol seorang perempuan nama ROSLAYATI BTE ABDULLAH yang berumur 9 tahun 10 bulan, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 376 Kanun Keseksaan.

Second Charge

Bahawa Kamu pada 28 April 91 lebih kurang di antara jam 8.00 pagi hingga jam 12.00 tengahari di rumah sewa tidak bernombor Kampung Bukit Lintang di dalam daerah Kota Tinggi, di dalam negeri Johor telah merogol seorang perempuan nama ROSLAYATI BTE ABDULLAH yang berumur 9 tahun 10 bulan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 376 Kanun Keseksaan.

The facts relied upon by the prosecution may be summarised as follows. A divorcee by the name of Rosnah bte. Junid (PW4 - "Rosnah") with two infant daughters [Roslayati bte. Abdullah (PW5 - "the victim") and Rosfadillah bte. Abdullah (PW7 - "Rosfadillah")] rented a house belonging to the appellant at RM40 per month. There was evidence that prior to this, Rosnah and her two infant daughters rented another house and, at the invitation of the appellant, Rosnah decided to rent the appellant's house. The house rented by Rosnah was not far from the house occupied by the appellant and his family. Rosnah worked at a factory and had to leave her two infant daughters at home everyday unattended. Rapport soon developed between the appellant and Rosnah's two infant daughters. The appellant developed a liking for the victim and this spelled trouble. Thus, on 28 April 1991 (the second charge) in the morning, the appellant like a hungry cat came and raped the victim. There was evidence that prior to this, the appellant had between February and March 1991 (the first charge) at an empty hut at an oil palm estate belonging to the appellant, the appellant raped the victim.

Encik Mohd. Yamin Ismail on behalf of the appellant strenuously argued in regard to the failure of the trial Court to frame and record preliminary examinations of the victim, Rosfadillah and Norakmawati bte. Norman (PW8 - "Norakmawati") for the purpose of ascertaining their capacity to understand and give rational answers and such failure was said to be fatal. The victim was born on 3 December 1981 and when she gave evidence before the trial Court on 17 June 1992 she was aged 10 years 6 months 14 days but on the date of the offence (the first charge) she was aged 9 years 4 months. Rosfadillah was born on 20 January 1983 and was aged 9 years 6 months 9 days when she gave evidence before the trial Court on 29 July 1992 and on the date of the offence (the first charge) she was aged 8 years 3 months. Norakmawati was born on 1 February 1983 and on the date of the offence (the first charge ) she was 8 years 2 months and when she gave evidence before the trial Court on 29 July 1992 she was aged 9 years 5 months 29 days.

By way of disgression, it is pertinent to lay down certain well known principles of law.

The pre-1971 position in Malaysia in regard to the evidence of a child witness, whether sworn or unsworn, is placed on the same footing as that of an accomplice. In simple terms, this means that