JUDGMENT

Nordin Hassan FCJ:

Introduction

[1] The appellant is appealing against the majority decision of the Court of Appeal in affirming the decision of the trial judge that convicted the appellant for an offence of rape under s 376(1) of the Penal Code. The High Court , after convicting the appellant, has sentenced him to 13 years' imprisonment and 2 strokes of the whip. The majority of the Court of Appeal, however, reduced the sentence to 8 years' imprisonment and maintained the 2 strokes of whipping.

[2] The charge against the appellant reads as follows:

"Bahawa kamu pada 7 Julai 2019 di antara jam lebih kurang 8:15 malam hingga 9:15 malam, di dalam sebuah bilik di tingkat atas dalam rumah No 52, Jalan Desa Meru 2, Meru Desa Park, Bandar Meru Jaya, 30020 Ipoh, di dalam daerah Kinta, di dalam negeri Perak telah melakukan rogol terhadap Awang (No. Pasport: AU 3598249) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 376(1) Kanun Keseksaan"

The Application By PW15 And PW16 For Their Identities Not To Be Disclosed Under Section 265A Of The Criminal Procedure Code (CPC)

[3] Before PW15 and PW16 testified in Court , they made an application through the Public Prosecutor for their identities not to be disclosed pursuant to s 265A of the CPC. The trial judge, after conducting an inquiry on 10 June 2021, was satisfied that there was a need to protect the identities of PW15 and PW16 and, as such, allowed their applications under s 265A of the CPC and s 20(1)(a) and (b) of the Witness Protection Act 2009.

The Prosecution's Case

[4] The prosecution established its case on the evidence of its main witness, the victim, PW15 (Protected Witness), and other corroborative evidence, among others, by Riki Sapari (PW3), Dr Nila Wati (PW5), PW16 (Protected Witness), PW15's diary (P20A), and the CCTV evidence.

[5] The main witness, PW15, an Indonesian national, testified in Court that on 8 May 2019, she was employed as a maid at the appellant's house. During the period of her employment, PW15 was sexually harassed by the appellant three times before the rape incident. The appellant also threatened PW15 not to inform his wife (DW2) about his conduct towards PW15, or if not, both of them will die, but PW15 will die first.

[6] On 7 July 2019, at about 8:00 pm, whilst PW15 was ironing clothes in Bryan's room, the appellant's son, the appellant, entered the room and thereafter closed the wooden blind. The appellant then pulled PW15's hand and moved towards the bed. PW15 resisted the appellant's action and said "lepaslah", but the appellant responded "teriaklah, tiada siapa yang dengar", and PW15 was pushed onto the bed by the appellant. The appellant then placed his body on top of PW15 while PW15 tried to push the appellant away, but failed. Her attempt to escape was also unsuccessful. While PW15 was lying on the bed, the appellant held both of PW15's hands with his left hand and placed them on her head. The appellant then, using his right hand, took off PW15's pants and panties and inserted his penis into PW15's vagina for about two to three minutes. After a while, PW15 managed to push the appellant's body and ran to the bathroom, but was followed by the appellant, who then fondled her. PW15 then pushed the appellant out of the bathroom and locked the door. PW15 heard the appellant knock several times on the bathroom door, but PW15 refused to open it. After the knocking on the door stopped, PW15 stayed quietly in the toilet to calm herself and then washed her private parts. PW15 thereafter went out of the bathroom to continue with her work. PW15 did not sleep that night but cried and wrote in her personal diary (P20A).

[7] The next day of the incident, on 8 July 2019, PW15 made three telephone calls to Riki Sapari (PW3), an employee with "Bahagian Tenaga Kerja KBRI", informing him about the incident that she was raped by her employer. PW3 testified that during the telephone conversations, PW15, in a state of panic, cried