PUTRAJAYA (Nov 12): The Federal Court has on Tuesday allowed former Perak executive councillor Paul Yong to adduce further evidence in his appeal against his rape conviction, in the form of five documents purportedly related to the Indonesian maid victim in the rape case.
A three-member bench, led by Federal Court judge Tan Sri Harmindar Singh Dhaliwal, ordered the case to be remitted back to the Ipoh High Court for hearing and possibly call witnesses to verify the veracity of the documents, and to come back to the Federal Court on whether the evidence could be certified, or otherwise.
Harmindar also directed that the scheduled hearing of Yong’s appeal at the Federal Court later this month be vacated until the High Court reached a decision on the five documents, or any other evidence produced.
Sitting with Harmindar were fellow judges Datuk Rhodzhariah Bujang and Datuk Hanipah Farikullah, in the unanimous decision under Section 93 of the Courts of Judicature Act 1964.
The apex court directed the defence and prosecution to be at the Ipoh High Court on Nov 26, for case management to possibly fix a hearing date for the matter.
Earlier, Yong’s counsel Datuk Hisyam Teh Poh Teik informed the court that his client had received a courier delivery, purportedly from the Indonesian maid, with a letter from an Indonesian lawyer.
In one of the documents which was recorded by the Indonesian lawyer, the victim allegedly admitted that she committed perjury during trial at the Sessions Court that implicated Yong, and claimed that she did that as she did not want to extend her contract of work.
She claimed that she fabricated the rape story after Yong had refused to terminate her contract of work, after working with the family since 2019.
The purported complaint of the incident was in 2019, for which Yong was found guilty by the High Court and sentenced to 13 years’ jail and two strokes of the rotan.
The other documents pertain to the victim’s identity card, her lawyer’s particulars, and translation from Bahasa Indonesia to Bahasa Malaysia.
However, the sentence was reduced to eight years’ jail and two strokes of the rotan on Yong’s appeal at the Court of Appeal, where the appellate court in a majority decision, upheld the conviction.
Hisyam suggested that the matter over the new evidence could possibly be referred back to the High Court for determination.
Harmindar asked Hisyam whether the victim would be willing to testify back in Ipoh over the documents, but the senior counsel said there was possibility that she might not come, since immediately as she comes back to Malaysia, she might be arrested for perjury.
Hisyam suggested the possibility of the lawyer who recorded her statement and retraction be called as witness.
Hisyam appeared with Datuk Rajpal Singh and Salim Bashir in Tuesday’s motion.
Hearsay and could not be verified
Deputy Public Prosecutor Faizal Amrin Noor Hadi, who appeared with Zander Lim and Fauziah Daud, in reply said that the additional evidence should not be accepted, as it was merely hearsay and could not be verified.
Faizal said Yong did not know the sender, or the truth of the documents, and that Yong should have lodged a police report first for the authorities to investigate.
However, the bench asked Faizal Amrin on the defence’s contention that the documents could be ascertained at the High Court, and to this, Faizal replied that it was still considered hearsay evidence.
Harmindar then asked “Isn’t the truth paramount in this matter?”, to which the prosecution agreed.
After a short recess, the bench came up with the decision.
The Ipoh High Court had found Yong guilty of raping his 23-year-old Indonesian maid in a room of his house in Ipoh, Perak, between 8.15pm and 9.15pm on July 7, 2019, and sentenced him to 13 years’ jail and two strokes of the rotan.
The High Court on July 27, 2022, allowed Yong to be released on RM30,000 bail, with one surety, and ordered him to surrender his passport to the court.
In his decision, High Court judge Datuk Abdul Wahab Mohamed said the court agreed with the prosecution that Yong’s defence — that the rape incident did not occur — was not credible, and was merely a denial and an afterthought.
The Court of Appeal however, in a two-to-one majority, upheld the conviction but reduced the sentence.
Datuk Azman Abdullah and Datuk Hadhariah Syed Ismail were in the majority, while Datuk SM Komathy Suppiah was the minority judge.
Komathy, in her dissenting judgement, ruled that there was no DNA evidence produced to prove the rape allegation, and that the victim was not credible as her face was shielded when testifying, resulting in an obstacle for lawyers to ascertain her facial demeanour and body language.
“Yong did not get a fair trial, as the defence was not allowed to observe the victim’s demeanour and gestures during her testimony,” Komathy said.