Justice Azman Abdullah, who read the broad grounds, said the appeal was without merit as the trial judge made a correct finding when convicting Yong.

“The trial judge was also correct to hold that the appellant’s defence was an afterthought and a bare denial,” he said.

Justice Hadhariah Syed Ismail, who led a three-member bench, was in the majority.

Justice SM Komathy Suppiah, who dissented, said she was allowing the appeal as the victim’s evidence was not credible.

“Moreover, Yong did not get a fair trial as the defence was not allowed to observe the victim’s demeanour and gestures during her testimony,” she said.

The majority, however, reduced Yong’s 13-year jail term to eight years, but maintained the two strokes of the rotan.

The bench also allowed a stay of sentence pending an appeal to the Federal Court.

Azman said the majority was satisfied that sexual intercourse had taken place without the victim’s consent.

“Medical evidence also supports the victim’s testimony that she was raped,” he said, adding that the victim is a credible witness.

Further, he said the opportunity to commit the rape was there since Yong’s wife and son had gone to a nearby fast food outlet and were expected to return 15 minutes later, which was sufficient time for a rape to take place.

“There is also no evidence the maid had sexual intercourse with other men,” he added.

Azman said the court was also inclined to give Yong’s wife’s evidence less weight as she was an interested witness.

He said there had been no compromise of a fair trial when the judge used his discretion to allow the victim and the person who took her to the police station to have their testimonies taken without their faces seen.

“The trial judge had the audio and visual advantage to observe the demeanour of the witnesses and was in the position to make a finding on the credibility of the witnesses,” he said, adding that an appellate court should be slow to disturb such findings.

Azman said even though there were several discrepancies in the victim’s evidence, they were not material to set aside the conviction.

He said the investigation into the case was satisfactory and the appellant had not been prejudiced by it.

Azman said the trial judge did not breach section 182A of the Criminal Procedure Code (CPC) by not considering Yong’s statement to the police denying the rape.

Conviction unsafe, says dissenting judge

Komathy, however, ruled that the conviction was unsafe as Yong was seriously prejudiced by the trial judge’s decision to give two witnesses a protection order under Section 265A of the Criminal Procedure Code.

During the trial in the High Court, a screen was placed to block the view of both the prosecution as well as the accused and his lawyers from observing the two witnesses during their testimony.

Komathy said this provision was introduced in the interest of justice to ensure the personal safety of witnesses by allowing them to give evidence anonymously, especially in cases involving organised crimes.

“Such an order must be made sparingly and only if the preconditions have been met. I am unable to agree with the prosecution on the necessity for the protection order in this case,” she said, adding it had occasioned a serious miscarriage of justice.

Komathy found the victim not to be a credible witness, noting that she was calm when Yong’s wife and son returned, despite allegedly being raped.

“This is inconsistent with (the conduct) of a rape victim. Further, she only complained to an Indonesian embassy official that she had been sexually harassed, and not raped,” she said.

Komathy said there was no DNA evidence to implicate Yong in the rape, and there was a total absence of injuries on the maid’s body.

“The doctor who examined her agreed that there were other possible causes, like masturbation or self-pleasure with the finger, for the tear in her hymen, besides sexual intercourse,” she said.

Komathy said it is highly unlikely that rape could have taken place when Yong was aware that he ran the huge risk of being caught, knowing his wife and son would return shortly.

“I am of the view that the glaring discrepancies and contradictions in her testimony had cast a serious doubt as to the veracity of the allegation made by her. This is sufficient to create a reasonable doubt in the prosecution’s case,” she added.

Komathy said the trial judge had failed to consider that Yong’s statement to the police soon after his arrest was consistent with his evidence in court.

“The trial judge did not mention the statement in his judgment, and the defence contends this is a breach of Section 182A of the CPC, entitling him to an acquittal,” she said, adding that the conviction is unsafe.

Yong, who committed the offence at his home in Meru Desa Park, Ipoh, on July 9, 2019, is free on RM30,000 bail, with his passport impounded by the court.

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