PUTRAJAYA: Former Tronoh assemblyman Paul Yong Choo Kiong, 54, who was convicted of raping his Indonesian maid two years ago, was deprived of a fair trial because the victim had testified against him behind a screen in an open court in Ipoh, Perak, the Court of Appeal was told today.
Lead defence counsel Datuk Hisyam Teh Poh Teik said there was an erroneous invocation of Section 265A of the Criminal Procedure Code by the learned trial judge to protect the identity of the then 25-year-old victim.
He said there was no need for the invocation, which had severely prejudiced the appellant and led to failure of justice.
He said the trial judge, before invoking the section, had failed to consider that the identify of the victim was already known to the appellant and his family as she worked for them since 2019.
He said there was no evidence that she was under genuine fear for her safety as she was in the protective custody of the Indonesian embassy after she allegedly escaped from the appellant's house.
"We were deprived of an effective cross examination where a witness's face is an important feature of a fair trial.
"The victim is a star witness, the most important witness against the appellant in this case.
"It is an accused person's right to cross examine a witness without unnecessary constraint.
"There was no open confrontation between the accuser and the accused, which is an important facade of a fair trial.
"Body language, for instance, changes in postures, facial expressions, wild gestures and sudden change in voice, are part and parcel of demeanour, which provide an acid test for credibility.
"It is important for the appellant to confront the accuser. This was deprived by the court below. There was no procedure of fairness and there was a miscarriage in justice. The evidence given by the victim ought to be expunged.
"It was completely erroneous of the learned trial judge as there was no evidence lives were threatened by the appellant or anybody else," Hisyam told a panel of three judges led by justice Datuk Hadhariah Syed Ismail.
Sitting with Hadhariah were justices Datuk Azman Abdullah and Datuk S.M. Komathy Suppiah, who heard Yong's appeal to set aside his conviction of 13 years in jail and two strokes of the rotan for raping the victim in 2019.
The prosecution was represented by deputy public prosecutors Amril Johari and Mohd Fuad Abd Aziz.
Amril denied that there was an unfair trial.
"It was a fair trial. The demeanour of the witness should be accessed by the trial judge, not parties.
"When the victim testified, her demeanour can be seen by the trial judge," he said.
To this, Hadhariah said she had heard rape cases when she was a Session Court judge.
She said it was a norm for rape victims to be placed at another part of the court building when testifying as it was traumatic for them to face the accused.
Fuad said the duty to say whether a witness was credible lied with the judge.
Hadhariah set March 1 for the decision.
On July 27, 2022, Yong was sentenced by the High Court to 13 years' jail and two strokes of the rotan for raping the victim.
Judge Datuk Abdul Wahab Mohamed found Yong guilty of the crime and that the prosecution had proven its case beyond reasonable doubt.
Abdul Wahab had said Yong, as an employer, should have protected his foreign employee, but had acted without humanity and destroyed her future just to satisfy his lust.
Abdul Wahab said the court found the victim credible, honest, truthful and her statements convincing.
Yong's counsel, Datuk Rajpal Singh, told the court the defence would file an appeal to set aside the conviction. They were granted a stay of execution.
The court allowed Yong to be released on RM30,000 bail with one surety and ordered him to surrender his passport to the court.