(b) Apel was convicted for the offence of rape of Comel.

The issue is whether all

the evidences tendered were sufficient to prove a prima facie case against Apel.

Section 375(b) of the Penal Code provides that an offence of rape is committed when
a sexual intercourse is done by a man with a woman without the woman’s consent.
The provision further adds that a mere penetration of the woman’s vagina is sufficient
to constitute the offence of rape. In order to determine whether or not a prima facie
case exists against Apel, there must be a nexus between the elements of rape and the
quality of the evidences tendered.

The first element to constitute the offence of rape is that there must be an intercourse
between a man and a woman that is, there must be penetration. In the case of Cheong
You Hoi [1999] 4 MLJ 518, the court decided that any amount of penetration is
sufficient where although there was no ejaculation nor presence of semen, as long as
penetration can be proved, an offence of rape has been committed.

By looking at the evidence tendered to the court, it can be said that the first element to
constitute the offence of rape has been fulfilled. The testimony of Dr. Medik which
was given on 2 April 2008, saying that there were injuries in Comel’s private parts
showed that there was penetration. In Cheong You Hoi, the judge held that
penetration existed even if there was no ejaculation or presence of semen but in the
case of Apel, semen was found in Comel’s private part (P4).

After being examined by Dr. Kemist, the semen turned out to be of Oren’s.
Nevertheless, the fact that the pubic hair found inside Comel’s vagina is Apel’s
showed that Apel might have been penetrated Comel as well because the pubic hair
will not be in a Comel’s vagina unless he penetrated Comel. So, the fact that there
were injuries in Comel’s private parts and Apel’s pubic hair inside Comel’s private
parts showed that there is a nexus between the penetration with the evidence
explained above.

The second element of rape that needs to be proved is that the sexual intercourse was
done without the woman’s consent. In the case of PP v Victor Rajoo [1995] 3 SLR
417, the court held that the fact that there were no injuries was not fatal to a charge of
rape. This case can be compared to the situation beforehand. In the case of the rape of
Comel, injuries existed as Dr. Medik testified that he found injuries in Comel’s
private parts. As such, the injuries proved that the sexual intercourse of Comel was
done without her consent.

In addition, the principle in the case of Mohamed bin Majid [1977] 1 MLJ 121 can
also be applied. In this case, the victim was held onto a rubber tree. She was pulled
from the tree, pushed to the ground, undressed and raped. At that point of time, she
decided to submit instead of struggle as she was afraid that the accused might strangle
her. Nonetheless, the court held that the intercourse was done without her consent as
the evidences tendered which includes bruises on her arms, blood and seminal stains
on her panties and the recent tear of the hymen established the fact that the intercourse
took place without her consent.

Applying to this case, the fact that there were injuries in Comel’s private parts might
suggest that the intercourse took place without her consent as injuries in private parts
showed that Comel may be struggling when the intercourse took place. Even so, the
main question to be answered is who penetrated Comel? As the evidence tendered
included Apel’s pubic hair found in Comel vagina as explained earlier, there is a link
exists between the evidence and the offence of rape. In other words, nexus exists
between the evidence tendered to the court and the elements to convict Apel for the
offence of rape.

In conclusion, the prosecution has a prima facie case in charging Apel for the offence
of rape by looking at the evidences tendered especially the pubic hair found inside
Comel’s vagina as it showed that Apel had penetrated Comel. As such, Astro was
right in convicting Apel of the rape of Comel as the elements of rape have been
proved thorough the evidences tendered to the court as discussed above.