[1995] 7 MLRH Seok Fook San v.

Public Prosecutor 159

SEOK FOOK SAN

v.
PUBLIC PROSECUTOR

High Court, Pulau Pinang

Jeffrey Tan JC
[Criminal Appeal No 42-275 Of 1994]
19 December 1995

JUDGMENT
This is the Appellant's appeal against his conviction and sentence for the rape of an
18 year old girl. The charge against the Appellant, in the trial before the
Georgetown Sessions Court, read as follows:
"Bahawa kamu pada 22.2.94, jam lebih kurang 2330 hrs, di kawasan
Perkuburan Cina, di Jalan Batu Gantung, di dalam Daerah Timur Laut di
dalam Negeri Pulau Pinang, telah merogol .... (p) dan dengan itu kamu
melakukan kesalahan yang boleh dihukum dibawah Seksyen 376 Kanun
Keseksaan Undang-Undang Malaysia".

The testimony of the prosecution witnesses in the trial below may be summarised
as follows. Two friends (PW1 and PW7), after a drink with other friends in a
coffee shop at Jalan Batu Gantung, were on a joy [2] ride (kami bersiar-siar menaiki
motorsikal ) in the vicinity of the Batu Gantung Cemetery. There, they heard the
sound of someone crying. The cries were close but PW1 was not sure where it was
coming from. PW1 said he was frightened. They shone the motor-cycle light to
find the cause. At first, he could not see anything. All of a sudden, a man stood up,
about 20 feet in front of them, and scolded them in the Hokkien dialect, " Kenapa
kamu kacau disini, saya sedang bersoronok bawa kawan perempuan disitu". PW1 did not
reply. He heard a female voice crying in the Hokkien dialect for help. A female
was at the same place as the man. Both PW1 and PW7 walked over to investigate.
A naked female was on the ground with her hands tied behind her back. PW1
untied the clothing binding her hands. As PW1 was untying her, the man put on
his clothes. The man invited PW1 "to take" the girl ( lelaki itu ada beritahu saya kalau
saya mahu mainkan perempuan - boleh ). PW1 scolded the man and called him
"binatang ". The man then walked to a motor-cycle, parked about 5 - 6 feet away,
and attempted to ride away. PW1 stopped the man. Meanwhile to summon help,
PW7 rode off on their motor-cycle. About one or two minutes later, a group
arrived and assaulted the man. Then, the police arrived. PW1 identified the man as
the accused/Appellant.
Under cross-examination, PW1 testified that he stopped as he heard cries, that
160 Seok Fook San v. Public Prosecutor [1995] 7 MLRH

PW7 rushed off for help [3] as the Appellant was attempting to leave the scene,
and that the Appellant could not leave as he (PW1) pushed the Appellant's
motor-cycle to the ground. PW1 identified the girl as PW4.
PW1's testimony on the cries for help, on the Appellant and PW4 at the grave
yard, that PW4 was naked and her hands were tied at the back with clothing and
that he stood guard while PW7 rode off for help, was supported by PW7.
PW4, a girl of 18, testified that she was a student studying Form 6 at a private
college in Georgetown. She was also working part time at the Shangri-la Hotel,
Penang. On the night in question, a male colleague of Indian descent (PW10) and
her were at Gurney Drive, a popular recreation spot. They were seated on a stone
and talking. PW10 asked her to turn as there was someone behind them. She
turned and she saw a man of Chinese descent. That man asked her why she was
seated there. He was fierce. That man was not known to her but she had seen him
before at a petrol station. Reproving her for her association with a male of Indian
descent, the man said that her parents would not approve of their friendship. He
further said that he had been following them (PW4 & PW10) and unless she
followed him he would beat up PW10. He was holding something long in his
hand. He said he would take her to her hostel. He insisted that she should follow
him, [4] and she was forced to follow the man on his motor-cycle. The man
stopped at a restaurant to pick up a helmet. Whilst he was inside the restaurant,
she stood alone, beside the man's motor-cycle, but she was frightened and confused
and did not know what to do. When the man came back, he took her to a
cemetery. The cemetery was quite. She was very frightened. On the way, she asked
why he was not taking the road to her home, but he replied that he was using a
short cut. At the cemetery he asked her to sit on a tomb. She wanted to go home
but he said that he would only send her home after he had questioned her. He
asked why was she with a person of Indian descent. He also asked if there was no
one of Chinese descent who would befriend her. He said " tau ke perempuan kat
kubur tu mati " and said "perempuan itu jahat, pasal itu dia mati ". She was frightened
but he would not allow her to go home. She shouted but he strangled her with his
hands. She identified the man who took her to the cemetery as the Appellant. She
could not raise her voice. He told her to keep quiet or he would stab her. She tried
to stand up and kick the Appellant but he caught hold of her and hit her. The
Appellant had his hands around her neck but released her when she complained
that she could not breathe. He held her hands behind her head and pushed her to
the ground. Then he removed her clothes; first, her T-shirt and then her brassiere.
He tied her hands with her brassiere, [5] and removed her trousers and panties.
Once more he tied her hands, only this time with her panties. Her other clothes
were left on the side. Before her clothes were fully removed, the Appellant kissed
her and said, "awak cantik kenapa bergaul dengan orang India?" The Appellant's
penis entered her vagina. She felt pain in her vagina. He was moving in and out of
her for about 10 minutes. He asked her whether his penis had fully entered her
vagina. She answered that she did not know. She was frightened and she believed
[1995] 7 MLRH Seok Fook San v. Public Prosecutor 161

she would be killed. After about 10 minutes later, he asked her to get up and
change her position. Just then, a motorcycle arrived and she shouted. The
Appellant was angry and pushed her to the ground. The Appellant walked to the
motorcycle and spoke to the motorcyclist. The Appellant was inviting the
motorcyclist to "use" her. She tried to look for her clothes, but she failed to locate it
as her hands were tied and she was crying. There was an argument between the
Appellant and the motorcyclist. The Appellant attempted to ride away on his
motorcycle. She said that the motorcyclist and pillion rider answered her calls for
help. The motorcyclist released her while his pillion rider rode away to summon
help. After she was released by the motorcyclist, she found her clothes. The
motorcyclist and Appellant were quarreling. Not soon after, other persons arrived
and assaulted the Appellant. The police arrived. She and the Appellant were taken
to the police station. She [6] identified PW1 as the motorcyclist who released her.
PW4 denied all learned counsel's suggestions that she smiled at the Appellant
when she saw him at the petrol station or at other places on the day in question, or
that the Appellant invited her to follow him instead of PW10. She said, " apa yang
OKT kata pada saya adalah perintah dan ugut dan bukan perbualan ," and she was
forced to follow the Appellant. She denied that she consented to the removal of her
clothes and to having intercourse with the Appellant. She also denied that she was
angry because she was "caught in the act", that the marks on her body were caused
by the rough ground she was lying on, or that the Appellant's penis had not entered
her vagina. She maintained that her hands were bound, that the Appellant forced
himself upon her and that the Appellant's penis entered her vagina. She denied all
suggestions that she had encouraged or enticed the Appellant.
PW10, who corroborated PW4 on all the events prior to Jalan Gurney, testified
that PW4 was forcibly taken away. He tried to follow, but all his motor-cycle tyres
were deflated. He approached a person for help, but that person ran away. He rode
his motor-cycle with the deflated tyres to Jalan Burmah where it was repaired. He
then reported the matter to the Georgetown Police Station at Jalan Penang. [7]
PW11, a doctor attached to the outpatient Department at the Penang General
Hospital, testified that she examined PW4 at 3.35 a.m. on 23.2 1994. PW4 was
calm but depressed. There were bruises on PW4's body - over her left arm and left
shoulder, over the upper and lower back, on both her wrists and her neck. She took
cotton swabs from her vagina. There was an injury on the posterior forchett.
PW9, a consultant gynaecologist attached to the Penang General Hospital, testified
that he examined PW4 at 8.30 a.m. on the 23.2.1994. There was a bruise on PW4's
left shoulder, a bruise on her left collar bone, some bruises on the right side of her
neck and some abrasions on her back. There was a fresh tear over the forchett
caused by some force to that area. The hymen was not torn, but he explained that a
hymen is elastic and can be stretched, even by the penetration of a penis without
breaking. He said that semen in the vagina indicated that there was intercourse.
Two prosecution witnesses - PW2 and PW6 - were not cross-examined. PW2,
162 Seok Fook San v. Public Prosecutor [1995] 7 MLRH

attached to the police patrol unit, testified that his patrol car responded to a radio
call and proceeded to the Batu Gantung Cemetery to investigate a report of a
female's cries for help. At the Cemetery, a group of persons was holding onto the
Appellant. PW4 looked "sedih - pucat dan telah [8] berpakaian " while the Appellant's
eyes were swollen and his chin was bleeding. PW2 escorted the Appellant to the
police station. PW6, a government chemist, testified that semen was found on
what proved to be the underpants of the Appellant, the panties of PW4, 3 cotton
swabs taken from PW4's vagina, PW4's sanitary pad and a ball of tissue paper.
Sections 375 of the Penal Code read as follows:
"A man is said to commit 'rape' who, except in the case hereinafter excepted,
has sexual intercourse with a woman under circumstances falling under any of
the following descriptions".

Of the 6 given descriptions, the following 3 were relevant to the evidence adduced
in the trial.
First - Against her will.
Secondly - Without her consent.
Thirdly - With consent, when her consent has been obtained by putting her in fear
of death or hurt to herself or any other person, or obtained under a misconception
of fact and the man knows or has reason to believe that the consent was given in
consequence of such misconception.
The proof adduced by the prosecution towards the ingredients of the alleged
offence was certainly [9] more than the victim's assertion - that the Appellant
inserted his penis into her vagina without her consent and against her will. The
presence of semen at different depths of PW4's vagina, and that semen was
detected below the hymen, were independent and corroborative as well as direct
proof that there was penetration and intercourse. Semen on the victim's clothes and
the underpants of the Appellant, and the testimony of PW1 and PW7 that the
alleged victim was naked as the Appellant was dressing himself when they chanced
upon them, was indelible proof, albeit circumstantial, of recent intercourse.
Together, the semen in the vagina, the semen on the victim's clothes and the
Appellant's underpants, that alleged victim and alleged assailant were undressed,
were that conclusive that even without the victim's testimony there was no doubt
whatsoever that there was intercourse. That the hymen was intact was not proof
rebutting penetration, for as was explained by the Consultant Gynaecologist, a
hymen is elastic and can be stretched. Therefore, the victim's complaint of
intercourse was corroborated by the testimony of the eye-witnesses at the scene
(PW1 and PW7), substantiated by forensic evidence (the semen on the clothes and
vagina) and corroborated by the factual testimony of the doctors.
As for PW4's consent or absence thereof, the alleged victim's claim - that
[1995] 7 MLRH Seok Fook San v. Public Prosecutor 163

intercourse was without [10] her consent, against her will and she was forced into
submission - was also not a bare. Her story was corroborated by witnesses who
heard her cries and found her naked with her hands tied behind her back, and by
doctors who examined her and found bruises on her neck, her upper and lower
back and on her wrists. Indeed, as said by the trial judge, all evidence was
unmistakably against consent. Even PW4's friend, even though he was not at the
scene, supported her story that she was taken away by the Appellant against her
will.
As for the "man" who penetrated PW4, the semen on the Appellant's underpants,
and the testimony from witnesses that the Appellant was dressing up, while near
him was the naked PW4 with semen in her vagina, were proof enough positively
implicating the Appellant as the "man" in question. The testimony of PW1, that
the Appellant said, "Kenapa kamu kacau disini, saya sedang bersoronok bawa kawan
perempuan disitu ", when he and PW7 chanced upon Appellant and victim, and that
the Appellant invited him to "use" the naked PW4 who was lying on the ground
with her hands tied behind her back, added only to what was already in surfeit.
There was more than one material fact pointing to the guilt of the Appellant [Attan
bin Abdul Ghani v PP (1970) 2 MLJ 143] or tending to confirm the guilt of the
Appellant [Ah Mee v PP (1967) 1 MLJ 220].
The call to the Appellant to enter his defence [11] at the close of the prosecution
case, given the overwhelming weight of the evidence incriminating the Appellant -
from victim, eye-witnesses, chemist and doctors, unless they were all to be
disbelieved, and there was no reason to disbelieve any of them - was therefore
more than warranted and justified by the evidence.
The Appellant, 39 years at the material time, testified as follows. At 7.00 p.m. on
22.2.94, he was having a drink in a coffee shop at Kota Road. At 9.45 p.m., he
adjourned to Magazine Road for a bowl of noodles. He wanted to go back to Bukit
Mertajam. He rode his motor-cycle along Penang Road and Transfer Road. Near
the Odean Cinema, he stopped for petrol at a petrol station. There was another
motor-cycle ahead of him. The motor-cyclist was PW10 and the pillion rider was
PW4. PW4 looked familiar to him; he smiled and PW4 returned his smile. PW10
departed from the station, followed by his motor-cycle. PW10 stopped at the
junction of Odean Cinema and Penang Road; he also stopped at the same
junction. PW4 turned and smiled at him. He tried to recollect where he met PW4.
When the lights changed, PW10 proceeded towards the direction of Hotel Malaya.
He followed PW10 and PW4 to Kawasan Kota . At Padang Kota, PW10 stopped
his motor-cycle. He too stopped his motor-cycle, about 40 feet from PW10. Again,
PW4 looked at him and smiled. He continued to [12] observe PW4 and PW10.
From Padang Kota, he followed PW10 and PW4 to Jalan Ahmad Shah (Northam
Road) and thence to Gurney Drive, where PW4 and PW10 alighted and walked to
the sea front. He too stopped his motor-cycle. He continued to observe PW4 and
PW10. Once again, PW4 turned and looked at him. He recognised then that PW4
was someone he knew and he returned her smile. He pondered whether he should
164 Seok Fook San v. Public Prosecutor [1995] 7 MLRH

call PW4. He observed that PW4 and PW10 were quarreling. He gathered courage
and approached PW4 and PW10. He asked PW4 if PW10 was her boyfriend, and
she replied that he was not. He could see that she was happy talking to him. He
invited PW4 to follow him. PW4 replied that she would discuss it with PW10.
After a short conversation, PW4 and PW10 rose from where they were seated. He
believed that PW4 was agreeing to follow him. PW4 and PW10 walked to their
motor-cycle. PW4 wanted to take a helmet from PW10's motor-cycle but PW10
would not give it to her. He told PW4 that he would get her another helmet. He
told her to get onto his motor cycle. He rode off with PW4 to a nearby restaurant
to borrow a helmet. He came back with a borrowed helmet and handed it to PW4.
As they rode off, he asked PW4 where she wanted to go and if she was keen to
visit a karoake lounge. Replying not, she suggested a beach or a park. He was
entering Jalan Batu Gantung where there was a coffee shop, and he asked PW4 if
she wanted a drink. She replied that she did [13] not. By then, they were in the
vicinity of a cemetery. Reaching a cul-de-sac he asked PW4 to alight from the
motor-cycle. Both of them sat on a tomb. They had a conversation. He asked her
name, and she answered, "Ah Hung". He realised then that he had mistaken her
for someone else. They were seated close to each other. His hand was on her
shoulder but as she did not rebuffed him, he embraced her. They were on the
ground when he removed her clothes. When she protested, he assured her that he
was not going to do anything. She said she was having her menstrual period and
then consented to him removing her clothes. He handed PW4's clothes to PW4.
They locked themselves in a passionate embrace. He asked her to give herself to
him. She asked what he meant, and he replied, "saya nak masuk ". She smiled.
However, he did not proceed any further as she had not given her express consent.
He only kissed her. PW4 informed him that she had to reach home before 12.00
midnight. Agreeing, he asked her to get up from the ground.
Just then, a light shone on them. He rose up to check. PW4 asked what was the
matter. He could see two persons walking towards them. Those two persons asked
what they (Appellant and PW4) were doing in that place. He asked them the same
question. Not replying, they continued towards him. He warned them not to come
any closer. As he quickly dressed himself, he told PW4 [14] to hide behind his
motor-cycle. He walked towards those two persons to stop them coming any
closer. He warned them that he would use force if they come any closer. One of the
two asked the other to leave the place. One departed on a motor-cycle. The person
remaining did not come any closer. Soon thereafter, a group of persons arrived and
assaulted him. One of them telephoned for the police with a handphone. A police
patrol car arrived and stopped the assault on him.
The Appellant denied that he threatened PW4 or inserted his penis into PW4's
vagina. When he was cross-examined, he testified that he followed PW4 and
PW10 because, "PW4 menoleh dan melihat saya ". He denied that he forced PW4,
with threats and false pretenses, to follow him so that he could rape her. He denied
that he forcibly removed PW4's clothes, and raped and ejaculated into her. He said
[1995] 7 MLRH Seok Fook San v. Public Prosecutor 165

that the semen on PW4's clothes and in her vagina was not his. He admitted
however that the semen on his underpants was his. He asserted that the bruises on
PW4's neck and wrists were caused by the grass.
In the trial below, Mr Danny Navaradnam submitted at the close of the
prosecution case that PW4 consented to the removal of her clothes and there was
no penetration. In the appeal, learned counsel adopted the same arguments. On
consent, he argued that the condition of PW4's clothes - and there was no evidence
[15] that the clothes were torn - was consistent with its removal without force. On
penetration, he argued that the presence of semen in the vagina was not proof of
actual penetration.
With regards to the appeal against sentence, learned counsel submitted the
authorities of Sidek bin Ludan v PP (1995) 1 AMR 722 (where the Appellant's
appeal against two convictions for the rape of a 9 year old girl and sentence of 7
years' imprisonment on each conviction, the sentences running concurrently, was
dismissed), Zulkifli bin Ismail v PP (1994) 4 CLJ 450 (where the appellate court, in
the exercise of its revisionary powers, enhanced the sentence of 7 years'
imprisonment and 3 strokes of the rotan for the rape of a 16 year old girl to 10
years' imprisonment and 3 strokes of the rotan), Kurchang Singh a/l Wedhawa
Singh v PP (1989) 2 CLJ 442 (where the appeal against conviction for the
attempted rape of a 19 year old girl and sentence of 6 years' imprisonment and 6
strokes of the rotan was dismissed) and PP v Jamlong Manmool (1993) 1 CLJ 212
(where the Brunei High Court sentenced the accused to 6 years' imprisonment and
6 strokes of the rotan) and he contended that the sentence of 15 years'
imprisonment and 12 strokes of the rotan was excessive.
Throughout a criminal trial, the burden lies [16] with the prosecution to prove
beyond a reasonable doubt each and every ingredient of the charge brought against
an accused. An accused has no burden to prove anything, for even if he is called to
give his defence, he has only an evidential burden to cast a reasonable doubt to the
prosecution case, either from the prosecution case itself or from the defence, to
earn an acquittal. In the instant case, where there was no applicable legal
presumption requiring a rebuttal on a balance of probabilities, all that was needed
from the Appellant was a reasonable doubt that the charge was not proved beyond
all reasonable doubt.
Yet, most apparently, that doubt was not cast. A cemetery, a place frightening to
many and even more grim and forbidding in the darkest hours of the night, and
usually shunned by the less stouthearted, is not the place, except to the weird and
sado-masochistic, where a young girl or any woman for that matter would
reasonably surrender to fond embrace and sensual fireworks, much less in the
instant case with a complete stranger. It is a place morbid and mortifying, and it
was not believable, as it was incredulous, that PW4, lying as she was on the
ground in front of a tomb in a cemetery in the darkest hours of the night, would
consent even to the Appellant's admitted embrace, let alone the shedding of all her
166 Seok Fook San v. Public Prosecutor [1995] 7 MLRH

clothes.
There was no doubt whatsoever that the [17] prosecution evidence - that, (i) PW4
cried for help, (ii) PW4's cries were heard by the eye- witnesses, (iii) PW4 was tied
up like a sacrificial lamb, (iv) injuries were found on PW4's neck wrists and back -
refuted the Appellant's asserted consent. If consent was given, then why was PW4
tied up in her clothes and crying for help? And why should there be injuries on her
neck, consistent with strangulation, and bruises on her wrists and back, consistent
with her being tied by the application of force, if indeed force was not applied?
There could not have been any consent, and plainly all argument to the contrary
was against good sense. The weight of the unshakable evidence against consent
was so overwhelming that the condition of the victim's clothes was too ethereal a
factor for serious debate, as all other facts were corroborative only of the allegation
of no consent [Chiu Nang Hing v PP (1965) 31 MLJ 40].
On penetration, the Appellant testified that he asked PW4 for her consent. He
testified that he desisted when her express consent was not given. There was no
penetration, he said. However, in the trial below as well as in this Appeal, the
Appellant was arguing against the obvious and evident. As noted earlier, semen at
varying depths of PW4's vagina, semen below the hymen -independent and direct
evidence of penetration and intercourse - semen on PW4's clothes and the
Appellant's underpants, and PW4 was naked as the [18] Appellant was dressing
up, left very little to the imagination. Undoubtedly there was intercourse. Against
the evidential tide, the denial of the Appellant was not enough to displace the
prosecution case. The submission on the absence of penetration has no merits
whatsoever, as PW4 was corroborated and substantiated on each and every
material aspect of the rape she said by forensic evidence and by the testimony of
independent and credible witnesses, without a break in the chain of evidence.
Without question, the conviction was made on sworn and tested testimony and
with all corroborative evidence, where there was no doubt whatsoever that the
Appellant was guilty as charged.
With regard to the appeal against sentence, s. 376 of the Penal Code provide,
"whoever commits rape shall be punished with imprisonment for a term of not less
than 5 years and not more than 20 years, and shall also be liable to whipping".
Within that permissible range, the trial judge had the discretion to impose the
sentence according to the facts of the case. This court, sitting as an appellate court,
should be slow to disturb the sentence, even if it would have passed a different
sentence, unless the sentence was manifestly harsh and excessive.
However, the record did not speak well of the [19] Appellant. Between the years
1972 to 1986, he was convicted of 10 separate offences, ranging from cheating,
theft, possession of heroin, extortion, possession of suspected stolen property,
breach of police supervision, housebreaking, receiving stolen property, possession
of heroin and theft, in that order in a long career in crime. The facts and
circumstance of the instant rape did not favour him either with any extenuating
 [1995] 7 MLRH Seok Fook San v. Public Prosecutor 167

circumstances. The rape was primeval, hatched by one of a bestial mind who
followed and preyed on a young couple, whose different ethnic backgrounds he
capitalised upon. The rape was cunningly executed, for it was most unlikely that a
victim's cries in distress in a cemetery in the middle of the night would be heard or
if heard would be answered, as a cemetery in the night is to many, a place of the
unknown where the living do not tread, except, as in the instant case, the intrepid
as PW1 and PW7. That the Appellant ravaged a hapless girl he abducted and then
forced and intimidated into submission with superior strength and verbal threats,
in a cemetery in the middle of the night, with the victim under threat - " tau ke
perempuan kat kubur tu mati " ... "perempuan itu jahat, pasal itu dia mati" - was a deed
most foul and loathsome. It was also most terrifying. When detected, he offered
the hapless girl, tied up and naked, to the Samaritans who heard her cries. There
was absolutely nothing redeeming [20] in the Appellant's conduct, and nothing in
his favour could be said or was said. He offered no cooperation to the police in the
investigation, and by testifying the poor girl was made to relive the horrors of the
night of terror. Yet, not a word of remorse, regret or contrition was said in the trial
below or in the appeal.
In the passing of an appropriate sentence, a court must satisfy foremost the public
interest. On the facts and circumstances of the instant appeal, and taking into
account the gravity and the execution of the offence, the sentence of 15 years'
imprisonment and 12 strokes of the rotan was not harsh or excessive. Public
interest would not be served if the sentence is disturbed, as a reduction of the
sentence for the abominable rape, would not reflect public abhorrence nor placate
public indignation.
The appeal against conviction and sentence is accordingly dismissed.

Powered by TCPDF (www.tcpdf.org)