Zakaria Yatim J

The appellant was charged in the Sessions Court, Kuala Lumpur, with an offence of kidnapping a female minor aged 13 years 10 months from her lawful guardianship. He was also charged with an offence of raping the said female minor. The appellant was found guilty and he was convicted in respect of both charges. The learned President, Puan Rahman Hussein, sentenced the appellant to four years' imprisonment with effect from the date of arrest in respect of the first charge and six years' imprisonment with effect from date of arrest and fined him $5,000 in default nine months' imprisonment in respect of the second charge. Both sentences were ordered to run concurrently.

The charges against the appellant are as follows:

First charge

That you on 24 April 1986 at about 2 pm at Vivekannanda Secondary School, Jalan Brickfields in the Federal Territory of Kuala Lumpur did kidnap one Farida bte Abdul Rahim, a female minor aged 13 years 10 months from the lawful guardianship of Hassan Fatimah bte Mohd Ibrahim and that you have thereby committed an offence punishable under s 363 of the Penal Code.

Second charge

That you on 9 May 1986 at about 9 pm at No 36/1, Jalan Siput 8, Taman Wahyu in the Federal Territory of Kuala Lumpur, did rape one Farida bte Abdul Rahim, aged 13 years 10 months and that you have thereby committed an offence punishable under s 376 of the Penal Code.

The facts relied upon by the prosecution may be summarized as follows: On 25 April 1986 at about 2 pm Farida bte Abdul Rahim ('the girl') left her house for school. She walked to school, which was less than a mile away from her house. When she left for school she was in her school uniform and she carried her school bag. On the day in question, she was 13 years 10 months old. As she was reaching school she met the appellant. The appellant persuaded her to follow him. The appellant took her in a taxi and brought her to see a film show. After the film show, the appellant took her to the house of Manickam (PW2), where they stayed for two weeks. According to the girl, after staying for one week in PW2's house, the appellant took her to his place of work, where the appellant raped her. After staying two weeks in PW2's house, they left the place and went to stay in a room in a house belonging to a Chinese. The appellant rented the room. On the day they arrived in the Chinese's house, the appellant raped her again. On 12 May 1986, the girl asked the appellant to take her home. She returned home on the same day at about 2 pm.

At the close of the case for the prosecution the learned President found that the prosecution had made out a prima facie case against the appellant on both charges.

I shall first consider the kidnapping charge. The learned President in her grounds of judgment, said that she was satisfied that all the ingredients under s 361 of the Penal Code (FMS Cap 45) had been proved. She came to this conclusion because (a) the girl was a minor, below the age of 16 years; and (b) the appellant took her 'without the consent of her lawful guardians, that is, her parents'.

Under s 361 of the Penal Code, whoever takes or entices any minor under 16 years of age, if a female out of the keeping of the lawful guardian of such minor without the consent of such guardian is said to kidnap such minor from lawful guardianship. It is clear beyond reasonable doubt that in the present case the girl was below the age of 16. Her birth certificate (P8) states that she was born on 28 July 1972. On the date the appellant took her away when she was going to school, she was not even fourteen years old.

The next question to consider is whether the appellant took the girl out of the keeping of her lawful guardian? In order to consider this question it is necessary to determine who is her lawful guardian. The first charge states that the girl was kidnapped from the lawful guardianship of Hassan Fatimah bte Mohd Ibrahim. Hassan Fatimah was the fifth prosecution witness and she is th