PUTRAJAYA, Oct 1 — Former Tronoh state assemblyman Paul Yong Choo Kiong began serving his eight-year sentence at the Kajang Prison today, following the Federal Court's decision to uphold his rape conviction.
A three-member bench, led by Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh, unanimously dismissed his final appeal against the conviction of raping his maid six years ago.
"The conviction is safe and the majority decision in the Court of Appeal is appropriate," said Justice Wan Ahmad Farid, sitting with Federal Court judges Datuk Nordin Hassan and Datuk Hanipah Farikullah.
Yong, 55, had appealed a ruling by the Court of Appeal, upholding the High Court’s original conviction of raping his 23-year-old Indonesian maid.
In July 2022, the High Court sentenced him to 13 years' jail and two strokes of the cane; however, in March 2024, the Court of Appeal reduced the sentence to eight years, maintaining the two strokes of the cane.
In delivering the court's ruling, Justice Farid said the appellant had challenged the application of Section 265A of the Criminal Procedure Code, contending that his right to a fair trial was denied because the victim, who was the 15th prosecution witness, gave evidence in a closed session without being seen by the accused or defence counsels.
The victim had testified under the provisions of Section 20 of the Witness Protection Act 2009 and Section 265A of the Criminal Procedure Code as the key witness.
However, Justice Farid found that there had been no miscarriage of justice against Yong, nor was the prosecution's case prejudiced by this procedure, as the victim was lawfully classified as a protected witness.
He noted that the Federal Court was satisfied that the victim was a credible witness and that the High Court had been correct to accept her testimony.
"The trial judge is the most appropriate party to assess the demeanour of witnesses when giving testimony in the High Court," Justice Farid said.
He added that Yong's counsel also raised the issue that the appellant’s DNA was not found on the mop that was used to clean his client’s semen in the said room.
The evidence before the court was that PW15 (the victim) had cleaned the sticky liquid found on the floor after the incident with a mop that was already soaked in soap and thereafter washed the mop.
"The existence or non-existence of the appellant’s DNA on the mop is subject to various factors that could not be conclusively determined by the forensic expert. In any event, the DNA evidence is only corroborative in nature and would not affect the prosecution's case if there is sufficient evidence to prove the elements of the offence of rape beyond a reasonable doubt.
"Furthermore, ejaculation is not an element of a rape offence. We are also of the view that the non-existence of the appellant's DNA on the mop does not affect PW15’s credibility, in the light of the totality of evidence," Justice Farid said.
Additionally, he found that PW15's failure to tell her mother about the rape, when she met her at the Indonesian Embassy two months after the incident, was explained by her testimony that she felt guilty and wanted to prevent her mother from worrying.
Justice Farid also pointed out that in her personal diary, the victim wrote 'Aku benci diriku' (I hate myself), and when questioned in court what she meant by that, she responded that she feels 'kotor, jijik, dan hina' (dirty and disgusting).
"PW15 also testified that before the rape, the appellant had sexually harassed her a few times in his house," he said.
On July 9, 2019, Dr Nila Wati (PW5) examined the woman at the Ipoh General Hospital and found fresh tears at the hymen, which had occurred less than 72 hours before the examination.
"PW5 did not rule out that the tears could be caused by penile penetration. The evidence from the CCTV also established the fact that at the time of the incident, the appellant was alone with PW15," Justice Farid said.
The victim’s testimony about the appellant warning her not to tell his wife about his conduct, threatening that if she did, both of them would be killed, and she would be the first to die.
He said the court also found that the key elements of the charge under Section 376(1) of the Penal Code, namely, penetration and a lack of consent from PW15, had been proven beyond a reasonable doubt.
“In conclusion, the appellant’s appeal is dismissed. We hereby issue a committal order against the appellant,” Justice Farid said.
Yong committed the offence in a room at his house in Ipoh, between 8.15pm and 9.15pm on July 7, 2019.
He was charged under Section 376 of the Penal Code, which carries a maximum imprisonment of up to 20 years and is liable to caning, subject to subsections (2), (3), and (4).
Deputy Public Prosecutor Mohd Amril Johari and Mohd Fuad Abd Aziz appeared for the prosecution, while counsel Datuk Hisyam Teh Poh Teik represented Yong.
