Preliminary —

The defendant, who was at the material time a police officer attached to the C.I.D. at the Central Police Station in Bandar Seri Begawan, is charged with the rape, contrary to section 376 of the Penal Code, of Leong Hai Len, in a room in that police station on the evening of June 2, 1985.

By section 375 of the Penal Code, a man is said to commit rape if he has sexual intercourse with a woman under circumstances falling within any of five descriptions, including:

(a) against her will;

(b) without her consent;

(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt.

[Paragraphs (d) and (e) are not applicable in this case.]

According to the "Explanation" annexed to the section "Penetration is sufficient to constitute sexual intercourse necessary to the offence of rape."

The prosecution case was that the defendant had sexual intercourse with Leong Hai Len ("Hai Len") without her consent and against her will. It would be sufficient if it was able to establish either.

I remind myself that the burden lies on the prosecution to establish the guilt of the defendant beyond reasonable doubt and that that burden never shifts.

Evidence of complainant

The principal prosecution witness is, of course, the complainant. If I do not find her to be a credible witness, that must be an end of the case.

Hai Len was born on May 8, 1968 and was only 17 years at the time of the occurrence. She was married to Sali anak Edop, who also gave evidence, on April 13, 1985. She left school, a month before that, when she became engaged to him.

In spite of her youth, she gave her evidence clearly and audibly and did not seem to be unduly nervous in spite of the intimate nature of some of the questions.

She described how, on the afternoon of June 2, 1985, she and her husband, Sali, left home about 4.15 p.m. and walked to the Lion Restaurant where she was working.

Outside the restaurant, a blue car containing two men, one of whom was the defendant and the other, a police officer, P.C. 2113 Mohammad bin Bustam ("P.C. Mohamed"), stopped near them.

After a conversation between the two men and her husband, both of them were taken to the Central Police Station in Bandar Seri Begawan.

The two officers took Hai Len and Sali upstairs to the main C.I.D. room where Sali was questioned about their passports, which he said were in the possession of their employers.

Sali was then taken to another room by P.C. Mohamed.

The defendant asked her a number of questions, some of a suggestive nature. He next asked her for the measurements of her waist, hips, chest and body and purported to take these measurements with his hands on her waist, thighs and breasts, telling her this was a police regulation.

While he was doing this, P.C. Mohamed entered and seemed to be jotting down the measurements on a piece of paper. After the defendant had finished measuring her, he took her to a smaller office, which led off to the C.I.D. room. Once they were inside that office, the defendant, having closed the door, said he wanted to measure her private parts and asked her the size of her husband's private parts.

When she protested that such a measurement should be done by a woman, he replied "The person who arrests should also examine and measure the person arrested."

The defendant then made her lift her dress and put his hand inside her pants and said he would "put his private part into my private part in order to take measurements of my private part."

When she cried and said "I do not want it," he threatened to send her to the hospital where an Indian with a bigger private part than his would do the same. He removed her pants when he was supposedly measuring her.

The defendant removed his trousers and underpants and pushed her to the floor.

He asked her to hold his penis and, when she refused, put her hand on it and pushed it into her private parts.

She felt him inside her as he moved up and down on top of her. He was only inside