QUESTION

Sara is 15 years old BUT her physical attributes are

more like a person who is 18 years old.
She is surrounded by friends who are college
students, studying at Kolej Bagus.
Sara met Zed,20,an international student.
Zed wanted to give a birthday present to Sara, so
he asked Sara when she was born. She gave him a
date of birth which indicated that she is 19.
They had sexual intercourse. This continued until
Saras mother found out.
She lodged a police report and Zed was arrested,
and charged for the offence of raping Sara.
Is Zed guilty of the charge?

AR + MR = HARM
Offence under : Section 375

(g)
With or without consent, when
she is under 16 years old
(Statutory rape)

AR

=
Sexual
intercourse
penetration of a penis into
labia minora or labia majora
MR = Intention (under the age
of 16)
Harm = Rape

Renganathan v PP (1947 13 MLJ

133)
The evidence of the age

of the girl is vital. IF

there is no definite proof
that the girl was under
14 (now under 16) the
conviction of rape must
be quashed.

Jamaluddin Hashim v PP [1999] 4

MLJ 1
In

statutory rape, an essential

ingredients to be proved by
prosecution is that the victim, at
the time of the offence was under
16 years of age.
The age of the victim can be
proven by the date of birth stated
in birth certificate
Identity card cannot in law be
used for proof of her age or date
of birth unless the particular
represent the date of birth of the
holder.

Hairani bin Sulong v PP [1993] 2 CLJ

79

Even

IF the appellant
claimed was true, that
the complainant is the
one who asked him to
have sexual intercourse,
the fact that the offences
is a statutory rape since
the
complainant
was
under the age of 16 years
old,
the
element
of
consent is irrelevant.

Mahendran A/L Manikam v PP [1997]

4 MLJ 273

When there is a dispute in

evidence
whether
the
alleged
offence
had
occurred before or after
the victims 16th birthday,
it
is
the
burden
of
prosecution
to
prove
beyond reasonable doubt
that the offence took place
before
the
girl
16th
birthday.

Application
AR

= Sara and Zed did had sexual

intercourse and this happen several times
until Saras mother found out.
MR = MR for the offence of statutory rape is
intention. For case fall under statutory rape,
age of the victim is important. Consent of the
victim is immaterial. Although Zed may argue
that he didnt know that Sara is 16 years old,
the fact that she is under 16 and the sexual
intercourse still happened regardless of the
age, the court can infer that there is an
intention and hence he is guilty under section
376.

Application
In applying the principle laid out in the

cases, the prosecution has to prove beyond

reasonable doubt :
1. The age of the victim is below 16 years at
the time of the alleged offence. It can be
proven by using any documents or
evidence that clearly indicate the date of
birth of the victim
2. that the
alleged offence occurred when
Sara was below 16 years of age.
Based on the fact it is clear that the sexual
intercourse took place when Sara was 15
years old.

To summarize.
Did sexual intercourse happen ??

YES
Did the girl below the age of 16 ??
YES
HENCE, Zed should be convicted

for the offence of rape even if Sara

consented.

Defence = Mistake of
fact
Section 79 = Element
1.Person justified by law or
2.By reason of mistake of

fact
3.Not by reason of mistake
of law
4.Believes in good faith
5.He is justified by law to
do it

Abdullah v R [1954] 20 MLJ

193

If the appellant believed

in good faith that the
complainant was over
16, it would be a case of
mistake of fact. What he
did would not be an
offence had the facts
been as he supposed
them to be.

Abdullah v R [1954] 20 MLJ

193

Justified by law??
An act only acquires its
criminal character by
being forbidden by law.
What the law does not
forbid it allows, and
what the law allows, is
justified by law.

Application
In this case there is a mistake of fact
by Zed because
Saras physical attributes are more like
18 years old girl.
She always surrounded by friends who
are college students and obviously
they are above 16 years old.
Sara gave date of birth which indicates
that she is 19.

Application
It is common knowledge that many of young
girls look very mature and fully developed
physically to look like having attained the age
of majority and hence mere physical
attributes cannot be a concrete basis of his
belief of good faith. The fact that she was
surrounded by college students is also
inconclusive.
However, Zed had believe in good faith that
he had sexual intercourse with a woman who
is 19 years old, not under 16 because the fact
indicating that she is 19 was given by herself
(due to the date of birth given by Sara to
Zed). Hence, it is unreasonable and

Application
The law does not forbid a man to have

sexual intercourse with a woman when the

woman consented to it and hence, it is
right to say that Zed is justified by law to
have sexual intercourse with Sara because
the act is not illegal.
Since there is mistake of fact with regards

to the age of Sara where Zed believes in

good faith that she is 19, Zed is justified by
law to has sexual intercourse with Sara and
hence this defense might be successfully
raised and entitled to be acquitted under
Section 79.

What if the defence is

not succesfully raised?
What is the factor that will be taking

into consideration as mitigating factor

in punishment??

PP v Zainuddin Bin
Adam
Long incarceration in prison would
not solve or deter young lovers
from having sex and will not serve
much purpose.
The
fact
that
the
sexual
intercourse act is consensual is
one
of
the
important
consideration in sentencing the
accused.

Nor Afizal v PP [2012] 6 MLJ

171
The judge was right when the
accused was placed on a bond for
good behavior for 5 years by
considering some factors :
1.Public interest
2.It was consensual
3.The remorse of the accused
4.Plea of guilty
5.He was a youthful
6.First time offender

Nor Afizal v PP [2012] 6 MLJ

171
If the appellant was older, or had
inflicted
force,
coercion
or
violence, or he had tricked the
victim, or he had not cooperated
with the police and not shown any
remorse to his act, or there was
no guarantee that he would not
committing the same offence in
the future, the court would not
hesitate to impose a lengthy

Mohd Salleh bin Mk Mohd

Yosof v Public Prosecutor
Public interest should be taken into
account when imposing a sentence to
the accused. Public interest must
equally balance the purpose of the
sentencing as form of deterrence and
as form of punishment which must be
meted out with the circumstances of the
crime. The behavior of the victims also
must be taken into consideration in
deciding
whether
the
punishment
imposed is adequate or not. If the
victims are someone with a loose
character, the courts may take it as a
mitigating factor in imposing the

Application
Based on the fact of the case, it is clear that
the sexual intercourse take place with the
Saras consent as she never objected to it.
The fact that the sexual intercourse
continue for several times until Saras
mother found out shows that it was
consensual and happen voluntarily.
The date of birth given by Sara to indicate
that she is 19 years old might be fairly
presumed to have effect that Sara consent
to sexual intercourse.
Zed is a young offender as he is only 20

Application
In applying the principles, in punishing Zed for the
offence of rape the court should look into the
circumstances of the offence. In order to protect
public interest, the punishment imposed must be
proportionate with the offence committed.
Based on the facts, we can fairly said that Saras
attribute towards the offence committed also
should be taken into consideration. This can be
proven by the facts stated that she associated
with a friends who are from the university
regardless of her age. Her action in lying to Zed
also shows that she is someone who have a loose
character. Thus, it is reasonably for us to say that
Sara also contribute in the offence herself and
this should be a mitigating factor.

Conclusion
Zed is guilty for the charge of

rape under Section 376(1).

However he might raise the
defence of mistake of fact
under
section
79
to
be
acquitted from the charge.
In the event where the defence
was not successfully raised, the
court
may take a few
mitigating factors in order to
impose the punishment.