PUTRAJAYA: The Court of Appeal in a majority decision today upheld the guilty conviction of former Tronoh assemblyman Paul Yong Choo Kiong, but reduced his jail sentence to eight years and maintained the two strokes of the rotan.
Yong's appeal against a High Court sentence for raping his Indonesian maid in 2019 was denied in a 2-1 decision by a three-member panel led by justice Datuk Hadhariah Syed Ismail.
Justice Datuk Azman Abdullah, who affirmed the conviction with justice Hadhariah, said in a broad judgment that the Ipoh High Court trial judge did not err in his ruling as he had considered and scrutinised all evidence before him.
In dismissing the appeal, he said the panel found no merit in the appellant's appeal and that the conviction was safe.
"The trial judge also found that the victim is a credible witness. He found that the (CCTV) footage showed that the appellant had the opportunity to rape the victim when his wife left the house with their son to go to a fast food restaurant drive-thru.
"For 30 minutes, the appellant and the victim were alone at the house. It is possible for the victim to be raped. There was no evidence from the appellant proving that his house was broken into or that the victim had sexual intercourse with another man.
"Therefore, the conclusion is that the freshly torn hymen and abrasion on the vagina was caused by the appellant, as alleged by the victim."
The judge said the panel was satisfied with the investigation and that the appellant was not prejudiced, further disagreeing with him that the probe was shoddy and incomplete.
The panel said the invocation of Section 265A of the Criminal Procedure Code was within the discretionary powers of the trial judge to observe the demeanour of witnesses and he was entitled to make findings on their credibility.
Justice Datuk S.M. Komathy Suppiah, who dissented, said Yong was denied his fundamental right to a fair trial as he was unable to see the face of witnesses due to the invocation of Section 265A.
"This is an important factor in cross examination. This is a serious miscarriage of justice."
She said she was far from satisfied as there were glaring discrepancies and contradictions in the victim's testimony that raised serious doubts.
"It is difficult for the appellant to recklessly run a huge risk to commit the alleged offence, knowing that his wife and son could return home at any time from the fast food restaurant, which was just 10 to 30 minutes' drive away, and knowing that the victim could tell his wife upon return," she said, adding that the appellate's evidence in court was consistent.
She said the victim was suspiciously calm after being allegedly raped, as if nothing had happened, which was inconsistent with the behaviour of a rape victim.
She said the day after the rape, the victim complained to the Indonesian embassy that she had been sexually harassed, not raped, and was treated unfairly by her employer.
"The allegation of rape only surfaced several hours later that day when she was taken to the police station.
"There was no explanation for the inconsistencies. There is a world of difference between sexual harassment and not treated fairly by employer and rape.
"There was also no DNA evidence to implicate the appellant in the rape. The injuries on the victim's body was inconsistent with the narration of acts.
"The doctor who examined the victim agreed that there were other possible causes, like masturbation.
"I am of the view that the appellant's conviction was unsafe and unsatisfactory."
The panel, however, allowed a stay of execution, pending an appeal to the Federal Court.
Yong's counsel, Datuk Rajpal Singh, said the appellant would argue on the point of law in the last appeal.
"This will be one of the rarest cases of rape charges being taken to the Federal Court," he said after proceedings.
On July 27, 2022, the High Court sentenced Yong to 13 years' jail and two strokes of the rotan for rape.
Judge Datuk Abdul Wahab Mohamed found Yong guilty and that the prosecution had proven its case beyond reasonable doubt.
He said Yong, as an employer, should have protected his foreign employee, but had acted without humanity and destroyed her future to satisfy his lust.
He said the court found the victim credible, honest, truthful and her statements convincing.
The court allowed Yong to be released on RM30,000 bail with one surety and ordered him to surrender his passport to the court.
On Dec 6, 2021, the High Court ordered Yong to enter his defence to a charge of raping his Indonesian maid after the judge found that the prosecution had established a prima facie case against Yong.
Yong pleaded not guilty on Aug 23, 2019, to a charge of raping his 23-year-old Indonesian domestic helper at his house in Meru Desa Park on July 7, 2019, between 8.15pm and 9.15pm.
He was then the state Housing, Local Government, Public Transport, Non-Islamic Affairs and New Villages Committee chairman.
