Public Prosecutor

- vs -

Abdul Rahman

Judgment

Tengku Baharudin Shah Tengku Mahmud, JCA

(delivering the judgment of the court)

1. The respondent in this appeal was earlier on convicted by the Sessions Court in Johore Bahru for an offence of rape. He was sentenced to imprisonment for 8 years and ordered to be given 8 strokes of the rotan. He successfully appealed to the High Court which overturned the said conviction and ordered his discharge and acquittal. We heard this appeal by the public prosecutor on July 5, 2004. At the end of the hearing we set aside the order of the High Court and restored the conviction and sentence imposed by the Sessions Court. We now give the reasons for our decision.

2. The complainant (SP6) was a 20 years old working girl staying away from her parents. She allegedly suffered from some stomach ailment which persisted despite her having sought treatment from several doctors. On her own father's (SP5) recommendation and persuasion, and being influenced by the demonstration of the respondent's extraordinary powers, she agreed to be treated by him. And feeling threatened and scared by the respondent's claim that disaster would befall her or she would die unless she underwent his treatment, she also agreed to his condition of staying in his house for the duration of the treatment until she was cured. The purported treatment began on July 24, 1993 when SP6 was taken by the respondent to live with his wife and children at their squatter house and lasted until the middle of October 1993, except for the few days at the initial stage when she returned to work to give her notice to leave her job and then returning to her parent's house, only to be persuaded to return to the respondent's house. The treatments from the respondent were usually preceded by recitation of Quranic verses, incantations in the name of Allah or prayers followed by sexual intercourse, vice versa or both. It was impressed upon SP6 that such was the will of Allah wherein she must submit, failing which she would become insane, meet an accident or die. Under such state of mind she submitted to the respondent's lust late at night and sometimes during the day. SP6 denied that she ever had any feelings towards the respondent, claiming that she received no pleasure from the sexual connections, and that at all times she believed that what was done unto her by the respondent was part of the treatment she had to undergo to relieve her suffering. She was taken in by the holy verses required to be recited, the elaborate rituals she had to undergo and the occurrences of strange happenings at times. Her faith was further strengthened by the advice of the respondent's wife that she should abide by his instructions as he had similarly treated numerous other girls when they were previously living in Pahang. She was also told that the respondent was not any ordinary bomoh but a holy man (Wali) and that hundreds of people had sought his treatment. SP6 denied ever having sexual intercourse with anyone before that. She only realised that she had been cheated when she did not menstruate and subsequently, after confiding with her mother and consulting a doctor, found herself to be pregnant. A police report was then lodged followed by medical examination by SP2 on November 1, 1993 which confirmed that she was 21 weeks pregnant.

3. In his defence, the respondent denied that SP6 stayed at his house for the purpose of medical treatment, contending that he allowed her to stay with him because her house was far away, and she wanted a place near to her place of work. He claimed that they had been friends for 3 month and that she was fully aware of the events that transpired and. consented to the sexual intercourse. She was alleged to be angry with him for breaking his promise to many her when he could not meet her conditions. She accused him of lying and they quarreled. He was arrested a week later and charged. The respondent also denied SP6's child to be his contending that she herself admitted to having a boyfriend before him.

4. The records of appeal show that the High Court allowed the respondent's appeal solely on the ground that the learned judge after reading the notes of evidence and the grounds of decision of the learned Sessions Court Judge found that the act of sexual intercourse between SP6 and the respondent took place with SP6's consent. Before us, the learned deputy raised 2 issues, that is, whether in the circumstances of this case there was consent from SP6 and whether the respondent's act amounted to rape. He submitted that there was no consent given to sexual intercourse at all, and if any consent was given it was for the treatment by the respondent of her ailment. He cited to us the case of Thomas Patrick Malone [1998] 2 Cr App R 447 where the Court of Appeal in England held that there is no requirement that the absence of consent has to be demonstrated or that it has to be communicated to the defendant for the actus reus of rape to exist, nor does the prosecution have to prove that the complainant did say no or put up some physical resistance. The prosecution only needs to have some evidence of lack of consent which in the present case had been fully satisfied. It was also argued that SP6 only consented to the medical treatment by the respondent and that her submission to the sexual acts was in the belief they were part of that treatment and not a true consent to have sex with the respondent. In R v Olugboja [1982] 1 QB 320 which was relied in support, the Court or Appeal dismissed the defendant's appeal against his conviction although the complainant had neither screamed nor struggled and had submitted to sexual intercourse without the defendant using force or making any threat of violence. The verdict was found to be fully justified as the victim was tricked into going into the house after having been raped by another and was frightened when dragged into the bedroom with the defendant determined to have sexual intercourse with her. And she was kept there against her will until she submitted although no force was used or threatened. It was there held that the jury should be directed to the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances and in particular the events leading up to the act and her reaction to them showing their impact on her mind.

5. In the lower courts the respondent had the benefit of counsel — different counsel for the trial and the appeal stage. The respondent unfortunately could not get counsel able and willing to assist him before us though he was given sufficient opportunity to do so. We invited him to address us on the issue of fact raised and he maintained that the sexual intercourse between them occurred with mutual consent.

6. Whether or not SP6 consented to the sexual intercourse with the respondent is a question of fact which must be decided on the evidence adduced at the trial. It is a question of fact substantially based on the credibility of witnesses. The appellate court must be and is always slow to disturb the decision of the trial judge based on credibility of witnesses unless it is convinced that the decision was plainly wrong and was against the weight of evidence. The Privy Council in Antonio Dias Caldeira v Frederick Augustus Gray [1936] 1 MLJ 110 said that the functions of the appellate court are limited in their character and scope when dealing with a question of fact and a question of fact in which questions of credibility are involved, and that in an appeal from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he had seen, the appellate court must in order to reverse, not merely entertain doubts whether the decision below is right but be convinced that it is wrong. This principle has been adhered to by our courts all these years and was quoted in extenso by the Federal Court in Mokhtar Hashim v PP [1983] 2 MLJ 232, 275 when it refused to interfere with the assessment of the trial judge who accepted the evidence of a witness whom he found to be consistent and unshaken by very severe cross-examination. We have no reason to question such wisdom.

7. Like the learned High Court judge we also read the notes of evidence and the grounds of decision of the learned Sessions Court judge but we found nothing in the decision of the trial court to convince us that it was wrong or against the weight of evidence. On the contrary, we found the learned trial judge justified in accepting the evidence of SP6 whom she found to be truthful, consistent and unshaken by severe cross-examination. We found ample evidence to support the prosecution's case that SP6 submitted to the respondent's will under the misconception of fact that she was being treated or undergoing medical treatment by a prominent bomoh and that death, insanity or disaster would befall on her if she disobeyed or refused. This is not a one off incident of rape but a series of sexual assaults on her covering a period of more than 2 months during which SP6 was made to say prayers, recite incantations and to observe and suffer elaborate procedures and strange occurrences which made her believe the respondent's claim that what was done to her was by the will and revelation of Allah. She was also convinced by the respondent's own wife that they were, and when she ran home she was persuaded and pressured by her own parents to return and complete the treatment. There was also the deception that she was unwanted by her parents and that he had to cleanse her. The trial judge was totally right in finding that SP6 gave her consent under the misconception that she was being medically treated by the respondent for her ailment. We saw no reason whatsoever for the appellate High Court to interfere with such findings of fact by the trial court. Indeed no reason was given. Likewise, the rejection of the respondent's defence is also based on the assessment of his credibility which the trial judge found wanting in view of the blatant lies and inconsistencies in his testimony in the light of established facts. To hold that SP6 truly consented to the respondent's repeated sexual assaults on her when her mind was clouded and confused and devoid of free will is clearly against the weight of evidence and would be a travesty of justice. The order made by the learned appellate judge was obviously unjustified, unsustainable and ought to be set aside.

8. 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. And s 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.

9. The authors of Ratanlal & Dhirajlal, Law of Crime, 25th edn, vol 2, in commenting on the phrase "without her consent" in s 375 of the Indian Penal Code, state the law as follows:

   Consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of the act complained of. [see p 1847] A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of free and untramelled right to forbid or withhold what is being consented to, it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred by the former. [see p 1848]

   It is also said that the consent of a woman should have been obtained prior to the act. It is no defence that the woman consented after the act.

10. Consent given on a misrepresentation of fact is one given under misconception of fact within the meaning of s 90. In R v Flattery [1877] QBD 410, the 5 men bench unanimously upheld a conviction of rape where a 19 year old prosecutrix, on consulting the prisoner who professed to give medical and surgical advice with respect to her ill-health, was advised that a surgical operation should be performed, and under pretense of performing it, had carnal connection with her. She submitted to what was done under the belief that he was merely treating her medically and performing a surgical operation, that belief being wilfully and fraudulently induced by the prisoner. All the judges there saw nothing in the case amounting to consent, either in fact or in law, to the act of carnal connection.

11. As suggested by Dunn LJ in R v Olugboja, supra, the emphasis should be on the state of mind of the victim immediately before the act of sexual intercourse. The Court of Criminal Appeal in R v Williams [1923] 1 KB 340 dismissed the appeal against conviction where the appellant, who was engaged to give lessons in singing and voice production to a 16 year old girl, had sexual intercourse with her under the pretense that her breathing was not quite right and that he had to perform an operation to enable her to produce her voice properly. He did that to her twice. The following summary by the trial judge is said to be a correct statement of the law:

    The law has laid it down that where a girl's consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was not sexual intercourse and because she thought it was a surgical operation.

12. Unlike the above cases however, we had before us a case of not one or two acts of sexual intercourse but a series of them. According to SP6 under cross-examination she was raped more than 10 times, some of which on a daily basis and others, at intervals. The first incident occurred on the first night she spent at the respondent's house. She slept in the hall while the respondent and his family were in the bedroom. The respondent came to her naked that night. She was advised to close her eyes and did not know what happened thereafter. When she woke up the next morning she could not remember what happened — she felt like a dream. She felt some pain in her private part. She then had her bath and went to work after which she returned to her parents' house. She was a few days later persuaded to return to the respondent's house and to bring 3 types of leaves to continue with the treatment. That evening he bathed her with flower scented water and asked her to pray and recite incantations till dawn. He came to her in the middle of the night claiming to have received revelation (wahyu) from Allah and that she was to obey him. He brain washed her to such an extent that she began to see strange things happening and persuaded her to take off her panties and lie down. After some elaborate ritual he stuck a bundled of pandan leaves into her vagina leaving them there till morning. The next day he asked her to recite incantations and to pray. The following night SP6 after asking the respondent's wife about the unusual treatment was told that other women were similarly treated by the respondent in her room adding that her husband was not only a bomoh but a holy man (Wall) and that SP6 should best abide by his instructions. SP6 had her period for the next few days but thereafter the respondent resumed his treatment. Having been persuaded and being convinced that it was the will of Allah that she must submit, SP6 allowed the respondent to penetrate her and ejaculate into her after which she was asked to take her ablution and to pray and recite incantations. On the next day, after his wife had gone to work in the morning, the respondent told SP6 that he had received revelation from Allah to start treatment during daytime. After asking his children to go out, he repeated what he did to her the previous night. Only this time he ejaculated into her mouth and asked her to swallow his semen claiming that it was holy water from heaven. From then on the respondent had sexual intercourse with SP6 whenever he wanted day or night. The relationship went on until October 1999 when SP6 told the respondent's wife that he made her drink his semen. As a result the respondent quarreled with his wife and also threatened to kill SP6. The next day she ran away and refused further treatment.

13. On such facts sufficiently corroborated, and considering the line of defence of non denial of the alleged occurrences but for the consent, can one really believe that SP6 freely consented to the acts of sexual intercourse by the respondent on her? Like the judges in R v Flattery, we also saw nothing in the circumstances of this case amounting to SP6's consent in fact or in law to the acts of carnal connection by the respondent. It had been drummed into her mind that she was submitting to the will of Allah through this super being who by such treatment could alleviate her from her suffering and prevent misfortune and disaster. He knew she would not and did not submit to his sexual advances so that he resorted to all manner of persuasion, threat, deceit and false rituals to convince her to submit. On the facts of this case as found by the trial judge, SP6 was not in a state of mind to exercise her will voluntarily and consciously when she allowed the respondent to take liberties on her person. Her acts of obedience and submission to the respondent do not denote an active will in her mind to permit the respondent's acts of sexual intercourse on her. He had fraudulently induced her to believe that she was receiving his style of treatment, and he very well knew that she was labouring under such belief.

14. SP6 did not appear to be conscious of what was being done to her when she was ravished the first time (see R v Meyers [1872] 12 Cox 311). She did not appreciate nor could she anticipate the respondent's actions in at least the few subsequent incidents as such she could not be said to have consciously permitted the sexual assaults on her before they happened. And she was living under the misconception of fact that she was receiving medical treatment from the respondent as bomoh throughout a large part it not the whole period of her stay with him. While consent must necessarily imply submission it does not follow that submission must mean consent because submission can also result from fear, force, threat, inducement or deception. SP6's submission to the respondent's bomoh treatment in this case was undoubtedly caused by his inducement and deception. Therefore we agreed with the learned deputy that the appellate High Court judge had misdirected himself in law and in fact on the issue of consent of SP6.

15. In all the circumstances therefore we allowed the appeal, set aside the order of discharge and acquittal by the High Court and restored the conviction and sentence imposed by the Sessions Court.

Cases

Antonio Dias Caldeira v Frederick Augustus Gray [1936] 1 MLJ 110, PC; Mokhtar Hashim v PP [1983] 2 MLJ 232, HC; R v Flattery John (1876-77) LR 2 QBD 410; R v Meyers [1872] 12 Cox 311; R v Olugboja [1982] 1 QB 320, CA; R v Williams (Owen Richard) [1923] 1 KB 340, CA; Thomas Patrick Malone [1998] 2 Cr App R 447, CA

Penal Code: s.90, s.373

Indian Penal Code: s.375

Authors and other references

Ratanlal & Dhirajlal, Law of Crime, 25th edn, vol 2

Representations

Roslan Mat Nor, DPP (AG's Chambers) for public prosecutor

Appellant in person

Notes:-

This decision is also reported at [2005] 2 AMR 204.