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IDRIS KAMBALI v.

PP ,HIGH COURT SABAH & SARAWAK, KOTA KINABALU


Brief facts:
The Appellant is a 'bomoh' or traditional healer who had gone to the village of
the alleged victim to cure her mother of a leg ailment. During the treatment of
the mother, the Appellant told the mother that something was buried under the
steps of her house which resulted in some illness with her daughter. She then
requested him to come to the house and upon seeing the victim; he said
something is wrong with her. He with the consent of the mother and the victim
was allowed to treat her whereby he licked her waist and purported to pull some
pus out. The next day he came back to treat her by giving her a bath with
coconut water. The mother was initially present outside the bathroom but left
later to attend to her small twins who were quarrelling. The victim's sister was in
the kitchen adjacent to the bathroom which had no door but the Appellant asked
her to go out. The victim was then wearing a sarung. When her mother and sister
had left, the Appellant lifted her sarung and pushed her to the wall and inserted
his penis into her vagina. She felt his penis go in and out several times. However,
when he heard the mother approaching he zipped up his pants. He continued to
rape her after she left the area. He threatened her that she will be harmed if she
did not keep quiet. The rape took place on 21 January 2007. The victim did not
report the incident for about a week. The incident came to light only after a
cousin of the victim by the name of Norsari in the village who was also treated by
the Appellant reported that she was raped.
Judgement of Session Court :
Sessions Court Judge in convicting the Appellant of the crime of rape and
sentencing him to 12 years imprisonment from the date of sentence. Stay of
execution of the sentence was granted by the learned Sessions Court Judge.
Judgement of the High Court:
The law on such appeal is settled and that is sentences passed by the lower
court should not be interfered with merely because the presiding Judge in the
higher court might have passed a different sentence. The only circumstance
which the appellate court should interfere is when the lower court had been
manifestly wrong in that he or she had taken into irrelevant considerations into
passing sentence. That is not the case here. The learned Sessions Court Judge
had not taken into irrelevant considerations and this can be seen from the last
paragraph of his judgment. In the circumstances the cross appeal by the
prosecution is dismissed as well.
In any event the central issue here is consent. Section 375(b) of the Penal Code
(PC) stipulates that a man commits rape if he has sexual intercourse with a
woman without her consent. Noorhafizah said that she did not consent to the
sexual intercourse with the accused. Section 90(a) provides that a consent is not
such a consent as is intended by any section of the PC if the consent is given by
a person under fear of injury, or under a misconception of fact and if the person

doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception for Noorhafizah, she did not attempt
to run away when her mother came back later. In the decided case ,the victim
was in a very vulnerable position when the accused had sexual intercourse. She
did say she attempted to scream but he covered her mouth. Later he threatened
her that it was part of the treatment and that she should not resist if she wanted
to recover. Noorhafizah said she listened to him because he also told her that her
illness was serious and would require surgery.
The judge sentenced the accused for 12 years of imprisonment under section
376 of the Penal Code, whoever commits rape shall be punish with imprisonment
for a term which may extend to twenty years , and shall also be liable to
whipping.