Former Perak executive councillor Paul Yong was denied a fair trial as the presiding judge allowed two witnesses, including the alleged victim, to testify in-camera, the Federal Court was told.
Lawyer Salim Bashir said neither Yong nor his counsel was present when the judge interviewed the alleged rape victim — an Indonesian maid — and the man who later took her to the police station to lodge a report.
The judge had in 2021 found that there was a need for both witnesses to be protected under Section 20 of the Witness Protection Act 2009 and Section 265A of the Criminal Procedure Code (CPC).
Submitting before a three-member apex court bench chaired by Chief Justice Wan Ahmad Farid Wan Salleh, Salim said Section 265 of the CPC was unconstitutional as it violated Articles 5 and 8 of the Federal Constitution.
“The appellant (Yong) was denied a fair trial as he and his lawyers were not present when the judge conducted an inquiry to determine whether the two witnesses should be accorded witness protection,” he said.
Salim said the notes of proceedings and the judicial reasoning used to satisfy the Section 265A criteria, were not disclosed.
The lawyer also claimed that, although Yong’s lawyers were present in the courtroom when the two witnesses testified, the defence could not mount an effective cross-examination as the witnesses were shielded from their view.
He said if the court was concerned about the safety of both witnesses, they should have been given protection under Section 272B of the CPC.
“Witness protection should only be accorded for the objectives that it is meant for — as in a case (involving) subversive elements, and not general crimes like sexual offences,” said Salim, adding that it would otherwise lead to abuse.
Lawyer Hisyam Teh Poh Teik submitted that the trial judge had erred in refusing Yong’s application to allow additional evidence in his present appeal to set aside the rape conviction.
On March 7, the maid’s lawyer Pathurrahman SH read a statement in the Ipoh High Court in which she confessed to fabricating her testimony — saying she did so to secure an early return home before her contract expired.
The trial judge, however, ruled the statement inadmissible, deeming it hearsay and not credible.
“It (the maid’s statement) should have been admitted, with the court deciding on its evidential weight,” he said.
Hisyam said the maid had refused to personally testify because she feared being arrested and charged with perjury.
Rajpal Singh also submitted that the maid’s evidence that she had been raped was not corroborated by the presence of the Yong’s DNA and medical evidence.
“At best, there was only sexual harassment,” he added.
Justices Nordin Hassan and Hanipah Farikullah also heard the appeal, which has been adjourned to a date to be fixed.
Deputy public prosecutor Amril Johari will reply to the appellant’s submissions at the next hearing.
On July 27, 2022, the Ipoh High Court found Yong, 54, guilty of raping his 23-year-old Indonesian maid in a room at his house in Ipoh, between 8.15pm and 9.15pm, on July 7, 2019.
On March 1, 2024, the Court of Appeal, in a 2-1 majority decision, upheld Yong’s conviction, with Justices Hadhariah Syed Ismail and Azman Abdullah in favour and Justice S Komathy dissenting.
The appeals court reduced Yong’s prison sentence from 13 years to eight but maintained the two strokes of the rotan.
