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2024 MarsdenLR 872
COURT OF APPEAL PUTRAJAYA
YONG CHOO KIONG – Appellant
Versus
PP – Respondent
[Criminal Appeal No: A-05(SH)-317-07-2022]
The court upheld the conviction for rape based on the victim's credible testimony and medical evidence, while the Appellant's defence was rejected as an afterthought.
Headnote:
(A) Penal Code – Section 376 – Rape – Conviction of the Appellant for raping his domestic helper – The trial Judge found the victim's testimony credible, supported by medical evidence of a torn hymen – The Appellant's defence was rejected as an afterthought – The majority dismissed the appeal on conviction but allowed the appeal on sentence, reducing imprisonment from 13 years to 8 years. (Paras 1, 13, 37)
(B) Evidence – Credibility of witnesses – The trial Judge accepted the victim's testimony as unusually convincing despite inconsistencies – The Appellant's defence was found to lack credibility and was deemed an afterthought. (Paras 22, 56, 90)
(C) Fair trial – Invocation of Section 265A of the Criminal Procedure Code – The Appellant contended that the trial Judge erred in allowing anonymous testimony, compromising his right to cross-examine – The majority upheld the trial Judge's discretion in invoking the section. (Paras 17, 59, 64)
Facts of the case: The Appellant was accused of raping his 23-year-old domestic helper on 7 July 2019 when left alone at home. The victim testified to non-consensual sex, corroborated by medical findings of injury. (Paras 3, 4, 13)
Findings of Court: The trial Judge found the victim credible and the Appellant's defence unconvincing, leading to conviction. The majority dismissed the appeal on conviction but reduced the sentence. (Paras 37, 56)
Issues: The main issues included the credibility of the victim's testimony, the adequacy of the investigation, and the invocation of Section 265A of the CPC. (Paras 16, 57)
Ratio Decidendi: The court ruled that the victim's testimony, despite inconsistencies, was credible and supported by medical evidence, while the Appellant's defence was deemed an afterthought. (Paras 22, 56)
Result: Appeal on conviction dismissed; appeal on sentence allowed, reducing imprisonment to 8 years. (Paras 37)
[1] This appeal is against the decision of the High Court dated 27 July 2022 whereby the High Court had convicted the Appellant/Accused for an offence of rape of his domestic helper ("the victim") under s 376 of the Penal Code . The Appellant was sentenced to 13 years of imprisonment and two strokes of the cane. The Appellant now appeals on conviction and sentence.
[2] We had, by majority decision, dismissed the appeal on conviction and allowed the appeal on sentence. We now provide our reasons for the decision.
Prosecution's Case
[3] In short, the facts of the Prosecution's case are that the Appellant, who is State Assemblyman for the constituency of Tronoh Perak and a member of the Executive Council of the Perak State Government had been accused for rape of his 23-year-old Indonesian maid. The victim testified that the Appellant had non-consensual sex with her.
[4] According to the victim, the offence occurred on 7 July 2019, whereby the Appellant had raped the victim when there was no one at home. The Appellant's wife, DW2, was said to have left the house with her son, Brye, in her Vellfire BVY 8858, to buy McDonald's at a drive-through outlet that was about 10 minutes away from their home. In her testimony, the victim stated that the incident happened at around 8.00p.m. when she was upstairs ironing clothes. The Appellant came into the room and closed the curtains before he pulled the victim's hand towards the bed and knocked her down. The victim tried to escape, but failed. The Appellant continued to forcibly hold the victim's hands and took off her pants and panties before inserting his penis into her vagina for 2 to 3 minutes. The victim managed to run away when the Appellant let go of her hands. She went into the toilet. The Appellant followed her into the toilet and tried to kiss her but she managed to push him out and lock the door.
[5] When the victim continued with ironing after the incident, she stepped on something sticky, which she believed was the Appellant's semen. So, she went down, brought a mop, and cleaned it. She then took the mop down to wash it. At that time, she noticed a McDonald's box in the dustbin.
[6] On 8 July 2019, the next day, the victim had asked the driver of the Appellant, SP7, to take PW15 to the Embassy. However, SP7 refused, as he needs to apply for leave. At around 10.00a.m., the victim then called the Indonesian Embassy and spoke to PW3. According to PW3, the victim informed her that she had been sexually abused by her employer. PW3 advised the victim to lodge a police report or find her way to the embassy. The victim then left the Appellant's house and was helped by a motorist (PW16), who took her to the police station.
[7] The victim was taken to a hospital where she was first examined by PW6, and later, by a gynaecologist, PW5. They found a freshly torn hymen and an abrasion on her vagina. PW5's opinion was that "this was a recent penetrative injury by something which passed through the hymen, and that injury was consistent with sexual intercourse." Apart from that, no other bruises or injuries were found on the body of PW15, as confirmed by PW6.
[8] During the investigation, the police took possession of the clothes worn by the victim for DNA analysis and seized some items that were allegedly used during the rape. However, from the analysis, no semen or DNA of the Appellant was found on the clothes, vagina, and fingernails of the victim or on the other items seized.
[9] There was also evidence of CCTV footage from the Meru Desa guardhouse and also McDonald's. However, according to the Police Officer, PW19, there were discrepancies as regard the timing used in the CCTV systems in both places and the actual time, i.e., the CCTV recording at the Meru Desa guardhouse was 10 minutes fast and 7 minutes slow at McDonald's.
Defence Case
[10] The Appellant elected to give evidence in which he denied the charge made against him. As submitted by the defence, the crux of the Appellant's defence was as
