PUTRAJAYA: Former Tronoh assemblyman Paul Yong was deprived of a fair trial when his accuser testified against him behind a screen, the Court of Appeal told.
Yong's lead counsel Datuk Hisyam Teh Poh Teik said that the High Court had wrongfully invoked Section 265A of the Criminal Procedure Code to protect the identity of the witness.
The law provision would kick in when the prosecution applies to the court to protect the witness's identity, upon which, the court will hold an inquiry in camera without the participation of the accused or his counsel.
The witness' evidence could then be given in such a manner that the witness would not be visible and only the voice would be heard.
Hisyam said the identity of Yong's accuser, who is the prosecution's 15th witness during the trial, however was already known to Yong and his family as she was working as a maid in their household.
"We are deprived of an effective cross-examination where a witness's face is an important feature of a fair trial.
"It is an accused person's right to cross-examine a witness without unnecessary constraint.
"Body language, for instance, changes in postures, facial expressions, wild gestures and sudden change in voice are part and parcel of demeanor which provide an acid test of credibility," Hisyam said here on Tuesday.
The lawyer was submitting in a hearing of an appeal filed by Yong against his conviction and sentence in the rape case involving his domestic helper.
Deputy Public Prosecutor Mohd Amril Johari, in his reply, said that it was normal for a rape victim to testify in camera in court without facing other parties except for the trial judge.
"There are victims who are fragile and scared to face the perpetrator. It is untrue to claim that the defence could not get a fair trial because they could not cross-examine the witness face-to-face and assess credibility.
"The trial judge alone has the opportunity to assess the credibility of the witness," DPP Mohd Amril said.
Court of Appeal judge Justice Hadhariah Syed Ismail, who chaired a three-judge panel in the appeal, remarked that during her time as a Sessions Court judge, it was common for rape victims to testify from another location.
"They were traumatised, they could not look at the accused persons," she said.
The panel then fixed March 1 to deliver its decision.
Other judges on the panel were Justices Azman Abdullah and S.M. Komathy Suppiah.
On July 27, 2022, the Ipoh High Court found Yong guilty of raping his 23-year-old Indonesian maid in a room of his house in the city between 8.15pm and 9.15pm on July 7, 2019.
High Court judge Justice Abdul Wahab Mohamed, in his decision, said the court agreed with the prosecution that Yong's defence that the rape incident did not occur was not credible, merely a denial and an afterthought.
Yong, 54, was given a stay of execution pending his appeal.
He is currently out on a RM30,000 bail.
