A three-member Court of Appeal bench chaired by Hanipah Farikullah said the appeal by Arifuddin Ishak, 23, was partially allowed based on the facts and circumstances of the case.
“The sexual intercourse between them had been consensual,” said Hanipah, who sat with P Ravinthran and Hashim Hamzah.
However, she said the bench had no jurisdiction to give him a bound-over sentence for good behaviour as it was only allowed for offences which were not serious.
“Under Section 294(6) of the Criminal Procedure Code and read with Section 52B of the Penal Code, this court cannot order a bound-over as the offence of rape carries a maximum jail term of 20 years,” she said.
She said the bench was “minded” to reduce the seven-year jail term imposed by the High Court to four years. However, it maintained the two strokes of the rotan.
Earlier, lawyer Ang Chun Pun submitted that his client should be given a non-custodial sentence as he was a “youthful offender” and the girl was 14 when the crime took place.
Deputy public prosecutor Aida Khairuleen Azli submitted that the words “serious offence” in Section 52B denoted an offence punishable with imprisonment for a term of 10 years or more.
She said the appellant had been convicted for an offence that carried a jail term of up to 20 years and whipping.
The facts of the case revealed that Arifuddin and the girl had been friends through Facebook and they developed a fondness for each other.
He picked up the girl from her house on his motorcycle and they went for a ride in Arau, Perlis, before they checked into a motel where they had sex.
During the night, the girl received several calls on her mobile phone as her father had reported to the police that she had gone missing, but she did not respond.
The offence took place between 8.30pm and midnight on April 26, 2017, which happened to be the eve of his 20th birthday.
The sessions court sentenced him to seven years’ imprisonment and ordered him to be given two strokes of the rotan after he was found guilty on Aug 4, 2020.
In a separate case, the same bench affirmed a 15-year jail term and three strokes of the rotan imposed on a 32-year-old former security guard who raped a girl aged 16 years and two months.
The man, who has been serving his prison term since March 26, 2018, was also ordered to be placed under police supervision upon his release.
The incident took place at a house in Damansara, Petaling Jaya, at about 6.30pm on April 5, 2017.
Deputy public prosecutor How May Ling represented the prosecution while KA Ramu appeared for the man.