PUTRAJAYA: The conviction of former Tronoh assemblyman Paul Yong is safe and correct, according to the Court of Appeal in a split 2-1 decision rejecting his appeal.
While the appeal on the conviction was dismissed, the three-judge panel, however, reduced Yong’s 13-year jail sentence to eight years.
The two strokes of whipping imposed on Yong remains.
Justice Hadhariah Syed Ismail, who chaired the panel, together with Justice Azman Abdullah made the majority while Justice S.M. Komathy Suppiah held the dissenting opinion.
Justice Azman, who read the broad judgment, said the trial judge did not err in his decision.
“The trial judge was also correct to hold that appellant’s defence was an afterthought and bare denial,” he said yesterday.
He said the trial judge did not err when he invoked Section 265A of the Criminal Procedure Code.
This invocation, he said, was well within the discretionary powers of a trial judge who could observe the demeanour of the witnesses and he was entitled to make findings on their credibility.
Section 265A is often used to protect the witness’ identity, upon which, the court will hold an inquiry in camera without the participation of the accused or his counsel.
Justice Azman also affirmed the High Court’s findings that there was enough time for the offence to take place based on the CCTV-footages obtained between the appellant’s house and the fast food restaurant.
He said there was a 30-minute window indicating that the appellant’s wife and son were absent from home as they were at the restaurant.
“There was no other evidence from the appellant that stated his house was broken into or the victim had sexual intercourse with other men.
“Therefore, it is concluded that the freshly torn hymen and abrasion on the vagina was caused by the appellant as alleged by the victim,” he added.
Meanwhile, Justice Komathy, who dissented, said she allowed the appeal as the evidence presented was not credible.
She said that Yong did not receive a fair trial as the defence was not able to observe the demeanour and gesture of two witnesses including the victim during their testimonies due to the invocation of Section 265A.
“The appellant has been prejudiced by a protection order granted by the trial judge under Section 265A that allows two witnesses to give evidence under the cover of anonymity.
“He was denied the fundamental right to a fair trial as the ability to see the face of a witness is an important factor in a cross-examination,” the judge said.
Justice Komathy also found it impossible for the appellant to commit the crime when he knew that his family could return home at anytime since the location of the fast food chain was between 10 to 30 minutes drive away.
She pointed out several discrepancies, one where the victim was suspiciously calm after the alleged offence took place and it was not consistent with that of a rape victim.
Such contradictions and inconsistencies in the evidence would have sufficed to create a reasonable doubt in the case for the prosecution, Justice Komathy said.
Yong was also allowed a stay of execution on the sentence pending an appeal to the Federal Court. When met with reporters, Datuk Rajpal Singh said the defence would argue on the points of law in their last appeal at the apex court.
“This would be one of the rarest cases where rape charges are taken to the Federal Court,” he said.
Deputy Public Prosecutor Fuad Abdul Aziz appeared for the prosecution at the proceedings.
On July 27, 2022, the Ipoh High Court found Yong guilty of raping his then 23-year-old Indonesian maid in a room of his house in the city between 8.15pm and 9.15pm on July 7, 2019.
