(vi) an unidentified sixth man. Because of the circumstances she was in, she was unable to identify the 3rd and 6th men who raped her. For the 3rd man, her memory was vague as she was tired after two men had raped her. In fact, after that she had freshened up by having her bath. As for the 6th man, Jannah was too tired 15 to observe in order to have identified him. [24] The victim was able to provide details of the place where the rape took place in a house in Sungai Siput. The astute description included details of the sexual acts, especially the penetration by the men, the arrangement of the room, her bodily positions, and the changing and 20 direction of light in the room as the rape took place from the early hours 14 in the morning to sunrise. This can only mean that she was in the room and went through the ordeal. [25] The emphasis here is that Jannah who had not met any of the four appellants before, was able to identify them, both at the identification parade and in court during trial. In this regard the SCJ who had the 5 advantage of audible evidence, had summed up succinctly in her judgment on the credibility and reliability of the victim in the following terms: “[15] Didalam kes ini saksi utama adalah mangsa kejadian sendiri iaitu SP1. SP1 telah memberi keterangan secara bersumpah di mahkamah. Semasa memberi 10 keterangan di mahkamah, mangsa telah pun berumur 17 tahun dan saksi ini juga sedang belajar di sebuah kolej di dalam jurusan berkaitan operasi sistem computer. Selain itu sebagai hakim perbicaraan saya berpeluang meneliti kredibiliti saksi ini di sepanjang tempoh beliau memberi keterangan di mahkamah. Saya dapati saksi dapat mengingati dengan jelas kejadian yang berlaku. Keterangan yang diberikan adalah 15 terperinci dan tidak tersangkut-sangkut terutama apabila menceritakan siapa lelaki-lelaki yang telah merogolnya dan juga apabila menggambarkan keadaan di tempat kejadian. Oleh itu saya berpendapat saksi ini adalah saksi yang credible dan keterangannya boleh dipercayai. Sekiranya mangsa mereka-reka atau mengada-adakan cerita, sudah pasti dia tidak akan dapat memberikan keterangan dengan 20 terperinci bagaimana kejadian persetubuhan itu boleh berlaku. Mahkamah juga dapati mangsa tidak goyah, menggelabah dan keterangannya tetap sama dan utuh dengan 15 keterangan yang diberikan semasa pemeriksaan utama walaupun mangsa disoal dan dicabar berkali-kali oleh peguambela.” [26] In sum total, it can be concluded that the victim’s evidence is reliable and she has emerged as a credible witness. The reliability of the evidence is demonstrated by the same response which she had afforded in open 5 court at every point of questioning, which is akin to a clock which tells the time accurately. Contradictions and inconsistencies in evidence by the appellants/accused persons 10 [27] There were contradictions with the witness statements made by the accused persons and their testimony in court. All the four accused persons had made conflicting statements and from this, it can be gathered that their story was made up and as the SCJ had surmised that it appeared to be an afterthought on their part. 15 [28] On the eventful night, the rape by the four men did take place with each one of them going into the room separately. Hence, their account of what allegedly transpired in the living room where they supposed to be chatting, using their hand phones and watching television did not hold water, leading to conflicting accounts of events in the living room. 20 [29] There were however events which did take place that were reported by the men and Jannah. For instance, Jannah had her bath and when 16 they all had Maggie mee later that morning. These incidents were also narrated by Jannah but in differing contexts. For the men, Jannah had her bath because she had the smell of smoke on her and in Jannah’s case, she took her bath after the 3rd man had raped her and also later in the morning after the ordeal. On this score, some of the accused persons 5 were also not sure if this took place. 1st appellant – Zakwan, SD1 [30] Contradictory evidence by Zakwan on the points whether Jannah had her bath and Muzaffar had cooked Maggie mee. In his witness statement he had stated that Jannah had her bath but when re-examined 10 by defence, he said that he did not know. 2nd appellant – Muzaffar, SD2 [31] He had stated in his defence that Shah Iskandar (SD5) had borrowed Boboy’s (3rd appellant) motorcycle as his motorcycle had a tyre problem. This differed from the statement from the others where they 15 stated that Shah Iskandar had borrowed Muzaffar’s (2nd appellant) motorcycle. He also did not state that Shah Iskandar and Hafikri (SD6) had sex with Jannah. 20 17 3rd appellant – Boboy, SD3 [32] Contradictory evidence by Boboy, wherein in his witness statement, he had said that Muzaffar was the only person in the house when he arrived there with Jannah. However, on cross-examination, he replied that Muzaffar and Shah Iskandar were in the house. In his statement, there 5 was no mention that Shah Iskandar and Hafikri had entered the room and had sex with Jannah. During cross-examination, Boboy said that his motorcycle was at the house and Shah Iskandar did not borrow it, but in the statement, he said that it was borrowed by Shah Iskandar, hence he was unable to send Jannah home. Also there were contradictions on the 10 time Jannah went home. When questioned by the Deputy Public Prosecutor (DPP), he replied, she returned home in the afternoon, but in his statement, it was stated in the morning, around 8-9 am. In his statement too, he had said that he was accused by Jannah’s mother for “makan anak saya” but when asked by the DPP, he replied that he had 15 never met Jannah’s mother at all. The SCJ had noted the demeanour of accused in hesitating to reply when questioned by the DPP about his interaction with Jannah’s mother. 20 18 4th appellant – Aiman, SD4 [33] He contradicted on whether Jannah had her bath or otherwise at the house. In his statement, he was sure that she had, while when questioned in court he said that he was unsure of this. [34] All the accused persons, save for Aiman had stated that Shah 5 Iskandar and Hafikri did come by the house and invited them to watch illegal racing in Ipoh. None of them wanted to go as they claimed. After that Shah Iskandar and Hafikri left for Ipoh. What is pertinent here is that there was no mention of Shah Iskandar (SD5) and Hafikri (SD6) having sex with Jannah before they left for Ipoh. Only Aiman had reported that 10 they had sex with Jannah, but he was unsure of the sequence. Denial by the appellants/accused persons [35] All of them denied they had raped Jannah. Their accounts of the incident did not match the evidence given by the victim. There are loopholes in their witness statements and testimonies in court which could 15 mean that they made up the events to cover the rape. Certain elements such as, Jannah having her bath and all of them eating the Maggie mee did happen, only the time and place these took place differed. [36] Their defence has been a mere denial of the rape on SP1. When denying the factum of rape, they have attempted to paint a neutral picture 20 19 of the timing of events on the day in issue when SP1 was with them. They tried cleverly to state that they were aware as to her presence at the abode but they just chatted with her, allowed her to have her bath, provided her with a meal of noodles. Other than that, all of them had stated they fell asleep after the chat and left the scene after that. It was only Aiman, the 5 4th appellant, who had stated that he saw SD5 and SD6 entered the room where SP1 was in, to have sex with her, but he did not witness the sexual act. As for the timing when they left the place; who cooked noodles for SP1; and who had borrowed whose motorcycle in order to leave the place; were riddled with inconsistencies and contradictions. Such 10 inconsistencies and contradictions do not augur well for them as it does not in any way fortify their defence of mere denial but in fact lends credence to the case of the prosecution vide evidence of the victim SP1, rendering it to be intact and unrebutted by the defence. [37] Their only consistency with the testimony of SP1 is Boboy’s (SD2) 15 subsequent conduct to speak to Shikin (SD7) and inform her that SP1 wishes to go back home. This is further confirmed by Aiman (SD4) who had escorted her out of the house to the place where the friend of SD7 had fetched SP1. Hence the defence advanced by the four appellants does not dislodge the case of the prosecution. (See the case of Ling Tee 20 Huah v PP (1982) 2 MLJ 324). 20 [38] Thus the SCJ has not misdirected herself, when she decided that the defence was an afterthought by all four accused persons. Juxtaposed with the overwhelming evidence by SP1, it is apparent. When concluding so, the SCJ has also considered all relevant factors, including credibility and demeanour of SP1 as well as positive identification of each 5 and every one of them by SP1. Medical Evidence [39] SP7, Dr Haema, a paediatrician at Hospital Raja Permaisuri Bainun, Ipoh and SP8, Dr Nilawati, an obstetrics and gynaecology expert from the 10 same hospital testified. SP8, stated, upon physical examination of Jannah on 23.5.2017 found that she had two old hymen tear. The size of the tear was wide (lebar). The doctor described the tear as such from 1-5 and 8 -11 0’ clock (see P16), and the tear could be attributed to the penetration of a blunt object, like penis. The conclusion that examination and findings 15 are conclusive of sexual abuse in the medical report (P15) further fortifies the findings made by SP7 and SP8. Bad character evidence [40] The attempt by the defence to paint the victim as a person with loose character was weak. The screenshots of Jannah’s WeChat where she is 20 alleged to have had suggestive pictures with remarks that she offered 21 sexual services in return for money is inadmissible pursuant to section 146A of the Evidence Act 1950 (Act 56). [41] The attempt by the defence is to use it as an overriding framework to put forth that Jannah was promiscuous and the rape on her was her own doing given this background. It is a fact that Jannah was a child and 5 she had been sexually taken advantage of by the four accused persons. Considering the fact that there is no possible way to verify that the pictures were from her, although the WeChat account belonged to her and that there was no tempering done by others, (see IDD5; IDD13 (A –H)), it remains inadmissible as it also contravenes section 146A. Moreover, the 10 fact that the victim SP1, testifying at the trial, even for the sake of argument, has a generally immoral character and the intention of the accused persons to introduce as their defence that she was likely to have consented to sexual intercourse is irrelevant and inadmissible for the purposes of impeaching her credibility, as she is a child below 16 years of 15 age, and as to whether the sexual intercourse was with or without her consent, is immaterial under the law. (See section 375(g) of the Penal Code, Act 574 (PC)). [42] Section 146A deals with the restriction on the evidence and the questions that may or may not be asked in a rape trial, like the present 20 case. The provision renders it impermissible to tender evidence or ask 22 questions concerning the sexual activity of the complainant with any other person, other than the accused. The exceptions to the rule are laid down in section 146A (a), (b) and (c), which is inapplicable to the present case. Section 146A would encompass a situation in the present case wherein, the offer of sexual services as alleged could be to persons, other than the 5 accused persons, hence such evidence is inadmissible. The offer of sexual services by her, as alleged could not possibly be made to the four appellants, as the unfolding of the narrative clearly shows that she was brought into the house by Boboy, SD3, confined in the house, her clothes taken away from her, then the four appellants had satiated their lust over 10 her and finally allowed to go home. The narrative does not sync with an offer (willingly) for sexual services by SP1 to them. [43] In the premise, their defence falls as a pack of cards. What is left is the factum of rape, which is denied too. The appellants cannot be blowing hot and cold, on one hand stating that SP1 allowed the sexual intercourse 15 with them and on the other hand stating that the rape on her did not take place. Their denial of the rape too, falls as a pack of cards, on the face of the positive and overwhelming testimony of SP1, which remains unrebutted till end of the defence case. It is also stark that the crime committed on SP1 is statutory rape. 20 23 The Impeachment [44] In his witness statement, Shah Iskandar (SD5) claimed that he had picked up Hafikri (SD6) and had gone out. At about 3.30 am on the said date they stopped by at the rented house. There he met Jannah at the house. He and Hafikri chatted with Jannah and later Jannah invited them 5 to have sex. Shah Iskandar and Hafikri admitted having sex with Jannah in the room. After they had sex, he and Hafikri left for Bulatan Meru. [45] Shah Iskandar had stated that his friends, Zakwan, Boboy and Muzaffar were asleep in the living room, except for Aiman who was awake. 10 [46] Hafikri’s (SD6) witness statement was the same as Shah Iskandar, which essentially states that they had met Jannah at the house, chatted with her and later were invited to have sex with her. After sex, they rested for a while in the living room to have a smoke. Then, they left for Bulatan Meru. 15 [47] Under cross-examination, SD6 admitted he had lewd chat with Jannah and Jannah had asked him and SD5 to have sex. He declined and asked Shah Iskandar to enter the room with Jannah. After Shah Iskandar, Jannah invited Hafikri for sex in the room. He too claimed that his friends Zakwan, Boboy and Muzaffar were asleep in the living room 20 during that time. 24 [48] Both Shah Iskandar and Hafikri’s witness statements were brief and identical which opens questions to its reliability. [49] An impeachment proceeding was pursued against SD5 and SD6, premised on their previous inconsistent statement, each one of them had made to the police under section 112 CPC. The 112 statement (see P17 5 and P18), was put to them in cross-examination to challenge their credit if the inconsistency will affect their credibility as witnesses for the defence. In court both testified to paint a picture to the court that, only both of them had sex with SP1, whereas the other four appellants have got nothing to do with SP1. By doing so they had in fact made an attempt to fortify the 10 denial by the four appellants of the rape on SP1. [50] But in their respective 112 statement, pursuant to the parts revealed to form the subject matter of the impeachment proceeding, it is apparent that they both have given clear details on the sequence of their turn together with the four appellants, when they raped SP1. In fact, the 15 sequence syncs with SP1’s testimony. But on impeachment, they both had stated in their explanation, that the statement was procured under threat and force. This allegation was rebutted successfully by the prosecution when the DPP had called the recording officer, Khairul Fikri bin Mat Rani as well as the succeeding Investigation Officer, Mohamad 20 Faiz bin Mohamad. Hence their credibility stands impeached, as they 25 have flatly contradicted in their testimony in open court under oath. It is noteworthy that, even for the sake of argument, both SD5 and SD6 were threatened or forced to give a 112 statement, the said threat and force would not extend, for the recording officer to force them to state the sequence of the men who had raped the victim. The statement pertaining 5 sequence of the men who had raped SP1, can only come from their own memory, as they were there at the scene of crime when the rape took place. [51] Furthermore, statement made by them under section 112 CPC, is fortified by built in safeguards under the law. The statement has to be the 10 absolute truth, and if otherwise they can be prosecuted for perjury; they have the liberty to refuse to answer any questions put to them or to make a statement if the effect would be self-incriminating them. They have been told of it before the recording takes place. Additionally, they have the opportunity to correct their statement if they wish to, before placing their 15 signature on it so as to allow any corrections to be made. Hence if they had reservations (be it threatened, forced) on the content of their statement to the recording officer, they could have corrected themselves. (See section 112(2), (3), (4) and (5) CPC). This obviously did not take place. In that regard, the SCJ has correctly embarked on the 20 impeachment proceeding which was anchored on their 112 statement. 26 [52] An express ruling on impeachment could have been made at the conclusion of trial, when there was finding of guilt and conviction of the three accused persons and finding of guilt of the 4th offender, who is a child. The SCJ instead, made the ruling only in her grounds of judgment. I view this as not fatal, as the express ruling which is made in the judgment 5 is followed by an explanation and assessment as to why she had impeached the credibility of SD5 and SD6 as defence witnesses for the accused persons. The ruling made only in the grounds of judgment does not constitute an error of law or procedure. The use of the 112 statements to impeach the credit of SD5 and SD6, was part of the cross-examination 10 by the prosecution and it does not call for any special ruling at that stage. (See the case of Somwang Phatthanasaeng v PP [1992] 1 SLR 850). Moreover, it has not prejudiced the appellants, as the ultimate ruling is contained in the judgment. Suffice to say, that the SCJ had painstakingly followed the impeachment exercise step by step whereby, she had made 15 a ruling on the material contradiction preceding the impeachment proceeding, confirmed that the 112 statement was recorded from SD5 and SD6, followed by questioning of both SD5 and SD6 and thereafter they were given their right to be heard before being judged on their credibility, by explaining their basis for contradiction. In that regard, the impeachment 20 proceeding is procedurally compliant. (See section 145(1) read together with section 155(c) Act 56; Dato Mokhtar bin Hashim v PP (1983) 2 MLJ 27 232, FC; Muthusamy v PP (1948) 1 MLJ 57). In the premise, the rejection of their testimony ab initio is justified. [53] With the rejection of the testimony of SD5 and SD6, whom had purportedly supported the explanation by the four appellants, there is only left the denial by the four accused persons, SD1, SD2, SD3 and SD4. But, 5 what is plain and obvious is the credible, overwhelming and substantive evidence of the victim, SP1, against the four appellants, thus strengthening the charge against them. The Appeal [54] Before me, however, the conviction has been attacked on a number 10 of grounds. In sum total, the defence counsel had argued that the SCJ had misdirected herself on the facts and law when convicting the first three appellants and finding the fourth appellant guilty. The Charge [55] It was contended by the defence, in effect, that the charge against 15 the appellants is bad in law, as it does not correspond with section 375(g) of the Penal Code (Act 593) (PC), which entails that rape which took place with or without the consent of the victim, ought to be mentioned in the charge. This argument does not hold water, as section 375 of the Penal Code, describes what constitutes an offence of rape under the law. 20 28 Section 375(g), specifically, refers to the situation whereby, if the victim is under age, below 16 years old, as in the present case, the issue as to whether the sexual intercourse did take place with or without her consent is immaterial. This is so as the law forbids sexual intercourse with a minor. Thus if sexual intercourse takes place on a victim, who is a child below 16 5 years old, it is deemed to be statutory rape. [56] Further section 152(2) of the Criminal Procedure Code (Act 593) (CPC), provides that if the law which creates the offence gives it any specific name (like rape on the facts of the present case), then the offence may be described in the charge by that name only, which is exactly what 10 the prosecution has done. Since the description of the offence is found in section 375 of the PC, it is not necessary for the prosecution to further state details as found in that provision. Reference to the offence as rape, suffices. [57] Moreover, as provided for in section 152(5) CPC, the fact that the 15 charge made is equivalent to a statement that every legal condition required by law to constitute the offence charged, which is statutory rape in the present case, has been fulfilled. Hence, when the prosecution has deemed it fit to prefer charges of rape against the four appellants on a child victim, who is below 16 years of age (specified in the charge), each 20 and every legal condition constituting an offence of statutory rape under 29 section 375(g) PC, is made out. The element of consent is never a material ingredient to be proven by the prosecution, since section 375(g) PC dictates that it is an offence per se to have sex with a minor, as in the present case. [58] After having made reference to section 376(2)(d) PC, in comparison 5 with section 376(2)(e) PC, it was argued that the appellants have been prejudiced as the charge preferred against the appellants does not state whether the sexual intercourse with SP1, took place with or without her consent. It was contended that section 376(2)(d) PC is triggered only when rape is committed on a victim under 16 years of age, without her 10 consent, thus the issue of consent is relevant, whereas in section 376(2)(e) PC, which specifies that whoever commits rape on a victim who is under 12 years of age, with or without her consent, shall be punished, thus the issue of consent is irrelevant. In this regard, the defence had argued that the appellants are entitled under the law to advance defence 15 of consent by SP1, the victim, when the sexual intercourse took place. [59] Surveying section 376(2) PC, it is stark that the provision caters for instances of aggravated rape which is punishable with an enhanced penalty (from that under section 376(1) PC). It is aggravated rape, because section 376(2)(a) to (k) specifies instances which are extreme 20 circumstances under which the offence of rape is committed. This 30 includes rape on a victim who is under 16 years of age, without her consent, which is punishable with a minimum period of 10 years’ imprisonment and maximum period of 30 years’ imprisonment and whipping. However, the offence of rape involving a minor, under 16 years of age, with or without her consent, is covered by section 375(g) PC and 5 punishment for that offence is provided for under section 376(1) PC, as in the present case. [60] The appellants are not prejudiced, since the substantive offence of rape is still committed if the child victim is under 16 years of age, with or without her consent. For that reason, the prosecution has also decided to 10 prosecute the appellants for the offence of rape on the victim, SP1, who was 15 years 10 months old, thus punishable under section 376(1) PC. [61] The prosecution has also deemed it fit to prosecute the accused persons under section 376(1) PC, premised on the viva voce evidence available. This is in tandem with the powers of the Public Prosecutor 15 exercisable at his discretion, pursuant to Article 145(3) of the Federal Constitution. It is apparent, that rape had taken place on the victim who was a minor at the material time, forced with sexual intercourse by the four accused persons in succession. It is force and against her will, as the victim was brought to the house where she was confined, her clothes and 20 hand phone taken away, leaving her helpless, before they satiated their 31 lust over her, one by one. Thus, rape has been committed on a minor who is under 16 years old, which is punishable under 376(1) PC. Moreover, the defence is not precluded from raising the defence of consent, which they did, but the facts and circumstances of the case, as well as the evidence available (as alluded to in the course of this judgment), does not 5 support such a defence. [62] On the charge too, as for the 4th appellant, involving a child, it is contended that the punishment applicable for a juvenile is not stated in the charge. It is trite, pursuant to section 152(4) that the law and section of the law against which the offence (the punishment provision) is said to 10 have been committed shall be mentioned in the charge. The prosecution has stated the offence of rape committed by the 4th appellant is punishable under section 376 (1) PC. But since the 4th appellant, at the material time of finding of guilt and sentence is a juvenile, the sentence meted out against him has to be in accordance with section 91 of the Child Act 2001 15 (Act 611). It is apparent that the court is fully aware of the applicable sentencing provision to this particular appellant. The probation report prepared by the Social Welfare Department officer alludes to the same, when reference is made to section 91(1)(f) of Act 611. The 4th appellant who was represented by counsel at the material time is fully aware of the 20 provision, as plea in mitigation was also directed to that provision. With all 32 that, the prosecution has been in full compliance with the law and the 4th appellant has not suffered any prejudice or injustice. Indeed, he has been sent to Henry Gurney school till he attains the age of 21 years. Child evidence and the need for corroboration [63] In criminal cases, like present, children are competent to give 5 unsworn testimony even though they do not understand the nature of the oath, so long as they are possessed of sufficient intelligence to justify the reception of evidence and understand the duty of speaking the truth. (See section 133A Evidence Act 1950 (Act 56)) The question whether a child has the necessary intelligence will be determined by the judge. Children 10 who understand the nature of an oath are competent to give sworn testimony. The test is whether the child has sufficient appreciation of the seriousness of the occasion and a realization that taking the oath involves something more than the duty to tell the truth in ordinary day to day life: R v Hayes (1977) 1 WLR 234. 15 [64] It is trite as how to deal with a child witness and the rules of evidence applicable are explicit. The law is found in section 118 Evidence Act 1950 (Act 56) which prescribes all persons, including a child, are competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers 20 to those questions. Thus, the trial judge has to determine a child's 33 competency to testify by ensuring that she understands the oath she takes. If she is able to understand, then the child may pursue with her testimony. If she is unable, then the trial will proceed with her unsworn testimony. [65] The child must be able to differentiate between telling the truth and 5 untruth in court and if she is untruthful, what could be the consequence. In that regard, a sieve through the questions posed to SP1, in this case by the DPP during examination in chief demonstrates that she is fully aware that she is testifying in court and know that she has to speak the truth. In cross-examination, she has testified that she knows of the effect 10 of not telling the truth. It is apparent from the record, that SP1 understands the sanctity and effect of the oath taken. She too knows of the effect of not telling the truth in the witness box. The effect of the oath taken by SP1 is strengthened by her steady and vivid testimony. The trial judge was convinced of SP1’s competency, thus she was allowed to testify. 15 Premised on those factors, SP1 is both a competent and credible witness. The answers rendered by her is commendable as she could very well recollect what has happened to her with no uncertainty. This coupled with her consistency in testimony which only leads to the conclusion that her evidence is rightly accepted and admitted by the trial judge. 20 34 [66] By virtue of the appropriate questions asked and the correct answers given by SP1, the competency of SP1 is not in doubt for the court to opine otherwise, thus the court is justified when it ruled that she is a competent witness to the dastardly crime on her. (See the case of Rameshwar v State of Rajasthan AIR 1952 SC 54; Kee Lik Tian v PP 5