Yusoff J:

The accused is charged with an offence of rape contrary to s. 376 of the Penal Code, allegedly committed by him on a 17 year old girl named Alice Lai Mui Ping in the early hours of the morning of 12 June 1974 at Sandakan. Originally charged with him was John Lu Su Thiam for abetting the same offence whose charge has been withdrawn by the prosecution and he now becomes a witness for the prosecution.

The complainant is an unmarried girl and unemployed, living with her parents at Mile 1 1/2 North Road, Sandakan and whose father is a pensioner and mother selling vegetables.

Her evidence is that on the evening of 11 June 1974 she and her sister with some friends went out for a stroll in the town. One of the friends was Nancy Liew. After her sister and others had gone home she continued walking with Nancy Liew until about 1 o'clock in the morning (12 June 1974) when they decided to go home. They waited for transport by the road side opposite the cinema theatre in the town while then a motorcar driven by accused with John Lu Su Thiam sitting beside him stopped not far away from them. Nancy Liew approached the motorcar and after some conversation with accused she called the complainant and they both entered the car. The complainant sat in the back seat with her.

After further conversation between accused and Nancy Liew, accused drove the car to a place called Sim Sim. On reaching there Nancy Liew went out and left the car. Accused then asked complainant where she wanted to go to which she replied that she wanted to return to Mile 1 1/2 (North Road). The car proceeded to Mile 1 1/2 but before reaching there accused said to complainant that he wanted to send his friend first to which complainant did not reply. Accused proceeded further along North Road and when he came to Mile 7 he branched onto an earth road and stopped the car after about 100 yards away from the main road. Accused persuaded complainant to take the front seat. She complied and sat between accused and John Lu on the front seat. After this accused drove the car further and stopped at a dark place. Complainant protested after finding that she was not to be sent home.

Now this place as is described later by Sgt. Major Anthony Loh (PW9) who visited the scene in the company of complainant and accused was a rubber plantation about 1/2 a mile away from an Army Complex which was then not occupied. There was no house within visible distance from the place.

While seated sandwiched between accused and John Lu in the front seat of the car both accused and John Lu started to fondle complainant's chest. She struggled and shouted for help. She threatened to report them to the police. Accused then kissed complainant on the mouth. She struggled again and when her mouth was free she said that she bit the accused's hand which was holding her upper arm. Under cross-examination there was some confusion as to which hand the complainant said she had bitten the accused. She said she had bitten him many times on the back of his palms. However, medical evidence of Dr. Mohamed Salleh Long (PW1) who had examined accused few hours later at Sandakan Govt. Hospital showed that there were in fact few minor scratches on both dorsum of accused's hands. These scratches were according to him, inflicted a few hours before and in the doctor's opinion they could have been caused by finger nails, but not caused by teeth. We will come to this later.

When she found herself free from the accused's hold the complainant climbed over to the back seat of the car, attempting to escape but she discovered that all the windscreens of the car were rolled up. Both the accused and John Lu quickly followed her also by similarly climbing over to the back seat. John Lu held both complainants arms behind her back. She shouted for help. Accused took out a towel and tied it over her mouth. While in that position accused stripped complainant of her skirt and her underwear. She struggled but to no avail. A