Hisyam Teh Poh Teik, lead counsel for Paul Yong, said this resulted in the absence of an “open confrontation” between the accuser and the accused.

“This is procedural unfairness. The appellant was denied a fair trial in the High Court,” said the lawyer in submission before a three-member bench chaired by Justice Hadhariah Syed Ismail.

Yong is appealing his conviction for committing the offence at his home in Meru Desa Park, Ipoh, on July 9, 2019.

He is also appealing the sentence of a 13-year jail term and two strokes of the rotan meted out by the High Court.

Yong, who was convicted on July 27, 2022, is free on RM30,000 bail, with his passport impounded by the court.

Hisyam said there was also a miscarriage of justice as Yong was denied what he was entitled to under the law.

“This is a simple rape case, not an offence where one gives evidence in a case such as waging war against the state,” he said.

The complaint by the accused stemmed from an application made by the prosecution for the trial judge to invoke Section 265A of the Criminal Procedure Code (CPC) to protect the identity of the victim.

“It was an erroneous invocation (of the provision) and the trial judge did not exercise his discretion properly. It was a futile exercise,” Hisyam said, adding that the identity of the victim had been disclosed at the outset of the case.

The victim’s evidence was given in the courtroom, with only the judge able to see and assess her demeanour and gestures.

A screen was placed to block the view of both the prosecution and accused and his lawyers from observing the witness during her testimony.

Lawyer Salim Bashir also urged the bench to strike down the provision in the CPC as unconstitutional.

“The procedure adopted under the provision is unduly harsh. The defence must be able to cross-examine witnesses and observe their demeanour,” he added.

Lawyer Rajpal Singh, said the trial judge also misdirected himself by concluding that Yong’s defence was a bare denial, an afterthought and a concoction of evidence.

Deputy public prosecutor Amril Johari said the trial judge was right to rely on the procedure set out in the CPC as the victim had been traumatised by the incident.

“It is only for the judge to determine the demeanour of the victim and other witnesses before making a ruling,” he said.

Another DPP, Fuad Abdul Aziz said the trial judge came to the correct finding as he found the victim to be a credible witness.

Hadhariah, who sat with Justices Azman Abdullah and SM Komathy Suppiah, will deliver their ruling on March 1.