Thomson LP:

(delivering oral judgment) This appellant was convicted in the High Court at Ipoh for the rape of a woman, Soh Lee Heck, at Trong in the District of Larut and Matang, in the State of Perak, on 23 August, last year, in contravention of s. 376 of the Penal Code and was sentenced to four years' imprisonment and six strokes of the cane.

Against that conviction and sentence he has now appealed.

The prosecutrix is an unmarried woman, aged 29, employed as a domestic servant. On the night of 22nd/23rd August her employers were away from home and she was sleeping in their house with her younger sister. Her story was that about 10.30 p.m. she went to bed dressed in a blouse and trousers. About 3 a.m. she woke up and found two men in the room, one of whom was the appellant whom she did not know before. He was naked, however, and she observed a body mark on his shoulder. He held her by the throat and threatened her with a knife. He made her lie down and had sexual intercourse with her. She was unable to struggle as all the time he was holding his knife to her person.

When he had accomplished his purpose the appellant and his companion left the house. The prosecutrix shouted for help and the watchman came and called the next door neighbours. She then went to the Police Station where she made a complaint. In that complaint she said nothing about being raped; what she said was that thieves had broken into the house; one of them had caught her by the neck and told her not to make any report. Then they took a watch and some money and departed. They were both Malays and she could recognize them again.

A little later police officers went to the scene of the alleged offence and on the cover of the bed on which the prosecutrix said the offence was committed they found fresh stains. They also found a pair of trousers which the prosecutrix said she had been wearing and these also had stains. Both sets of stains on subsequent laboratory examination were found to be seminal.

The prosecutrix was then sent to the hospital where she was examined by two doctors. They found injuries, longitudinal abrasions, on both sides of the neck which could have been caused in a struggle by a hand holding the neck. They could, however, find no signs of recent sexual intercourse and there were no injuries to the private parts; the pubic hairs were not matted and no spermatozoa were found in the vagina. The hymen was ruptured but this was not recent. In short this evidence did not support in any way that the woman had had sexual intercourse within the previous twelve hours but on the other hand it did not negative such a possibility.

The following day the appellant was arrested and the day after the prosecutrix identified him without hesitation at a police identification parade. In her evidence she said she recognized him by his face and by the mark on his body.

That was the case for the prosecution. The appellant made a statement from the dock in which he denied having gone to the house at all and said that on the night in question he was at home sleeping with his wife. He called no witnesses. The defence, in effect, was mistaken identity and no other issue was raised in the course of the trial.

The trial Judge adopted what, with respect, we consider the proper approach in cases of this nature. First of all he applied his mind to the question of whether or not the prosecutrix had been raped and then he turned to the question of whether or not it was the appellant who raped her.

On the question of rape or no rape he formed the opinion that the prosecutrix was a witness of truth and he found that her evidence was supported by the presence of seminal stains on the bed on which she had been lying and on the trousers she had been wearing. He regarded the medical evidence as showing that she could have been penetrated without apparent injury to her private parts and he treated her own evidence of not having had previous sexual intercourse with a