JUDGMENT

Mahadev Shankar J:

In this criminal appeal the appellant's Counsel had made a somewhat startling proposition. It is that if a man having already stated it as his intention to rape a woman then forcibly proceeds to strip her stark naked, he cannot be convicted of attempted rape if at that moment he is stopped from proceeding further by the arrival of the police. It is submitted that in such a case all the law can do is to find him guilty of using criminal force to outraging her modesty.

The appellant was convicted in the Sessions Court Klang on a charge of attempted rape, and a second charge of robbery, on which he was sentenced to six years imprisonment and six years and six strokes of the rotan respectively. The sentences were to run concurrently.

Briefly the facts were as follows.

On 17 August 1985 the victim of these offences was a sales assistant. She was a Chinese girl, then aged 19. It is not necessary for her name to be disclosed in this judgment.

She finished work at about 9 p.m. at Damansara Jaya. Then she went to the bus stop at Kimisawa Complex Damansara Jaya to wait for a taxi. She was alone. A taxi arrived. She got into the back seat.

In the front were two men. The appellant was driving the taxi. Seated next to him was one Sithwanta Singh a/l Busata Singh. She told the driver she wanted to go to Petaling Garden.

Petaling Garden was quite a distance from Damansara Jaya. When the taxi moved the complainant smelt liquor. She also thought the driver and his companion appeared to be drunk. This was within two to three minutes of boarding. She became alarmed and told them to stop. They did not do so. Then she told them to go to SS2 instead since it was closer. But again they did not do so.

Soon after the taxi stopped at traffic lights. Sithwanta Singh climbed to the back seat and pointed a toy "gun" at the complainant's head. She panicked and screamed. Sithwanta Singh then hit her on the head and told her to keep quiet.

The taxi proceeded. Complainant says that both the appellant and Sithwanta Singh told her of a misunderstanding with her brother. They said that they caught her because they wanted revenge. When she said she had no brother and they had got the wrong person, both the appellant and Sithwanta Singh asked for money to get to Pakistan because the police were after them. Sithwanta Singh took her hand bag, wallet and wrist-watch. (Her evidence at the trial was that the wallet contained RM30 to RM40). She asked them to send her home but Sithwanta Singh caught her head and pushed it down so that she could not see where she was going. Both of them kept asking for money. She asked to be taken home but they said later.

She was then driven along the Kepong Road miles away from her original destination to a desolate mining area in Sungei Way. Here the taxi stopped.

Then both of them asked her if she was a virgin. If she was they said they would rape her. If not they won't. So she said she was not. Then one of them said if so why should she mind being raped.

Next they asked her to take off her clothes. She refused. So both of them hit her with their hands on her face. Then they said if she took off her clothes they would not rape her. So she took off her shirt. Both the appellant and Sithwanta Singh then started to touch her body. All three of them were in the back seat. Then they asked her to take off her bra. She complied. When she refused to take off her pants both of them hit her when she resisted and forcibly removed both her pants and her panties. Whenever she tried to say anything they hit her and told her not to make a noise. Both of them said they were going to have sex with her.

The complainant was stark naked by this time and both accused had started to touch her private parts and her body.

Before they could do anything more, the Police arrived. But the appellant's reaction was to jump to the driver's seat and try to start the car to make a getaway.

The police were there in ambush position because they had a previo