Subsection
(3) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal. (emphasis added) [52] Section 182A (1) requires the court to consider all the evidence adduced before it at the close of a trial in deciding whether the prosecution has proved its case beyond a reasonable doubt. In the appellant’s section 112 statement (D107), the appellant’s defence essentially was that the appellant did not rape PW15, and PW15 invented the story as an excuse to return home to Indonesia. Further, in D107, it stated that this could be a political ploy. Here, it is not disputed that the main contents of D107 S/N luBQUzR5y0q42tcDn365xg were regurgitated in the appellant’s oral evidence when he presented his defence before the court. Hence, when the court has considered his defence made orally at the close of the trial, the court had considered all the evidence adduced before it. It was not the submission of the defence that the contents of D107 are different from the appellant’s oral evidence in court. Therefore, there is no breach of section 182A in the present case. [53] Furthermore, the appellant’s defence in D107 is an exculpatory or self-serving statement, which, in itself, is not evidence of facts. The evidence of facts is the oral evidence of the appellant in court, which has been tested by cross-examination. This court in Pendakwa Raya v Mansor bin Mohd Rashid [1996] 3 MLJ 560 explained the principle as follows: “With respect, we are of the view that the approach was wrong. A purely exculpatory or self-serving statement is not evidence of the facts stated, though it may be admitted to show the reaction or attitude of the accused at the time when he made it. And in considering whether there is a case to answer, a trial judge ought not take into account such a statement as the basis for founding an order of acquittal and discharge.” (emphasis added) [54] Next, in Public Prosecutor v Adetunji Adeleye Sule [1993] 2 MLJ 70, Edgar Joseph Jr SCJ, also touched on the same issue in the following manner: S/N luBQUzR5y0q42tcDn365xg “In the same way, in a case where the onus lies on the accused to rebut a statutory presumption, a voluntary out of court statement by the accused and this include a cautioned statement – which is wholly exculpatory should not be made the foundation of an order of acquittal especially at the close of the case for prosecution, since at that stage, the accused not having given evidence himself, his explanation could not be tested by cross-examination.” (emphasis added) [55] Likewise, in the case of Public Prosecutor v Chan Kim Choi [1989] 1 MLJ 404 where the court said this: “Such statements, when given in accordance with s 122(6) of the Criminal Procedure Code, may be admitted as part of the prosecution's evidence, but not as to the truth of the contents thereof. They are admissible on the ground, as the Privy Council has put it, that ‘common fairness requires that the entirety of the statement should be admitted so as to show the precise context in which the admission was made’.… What he says in order to exculpate himself cannot be admissible as the truth because it is self-serving and also because it is not necessarily consistent with other facts that may be established by the prosecution in the course of the trial. Accordingly, we are not prepared to accept, in a submission of no case to answer, the contention of counsel for the defence that the explanations given by the accused in his cautioned statement were true.” (emphasis added) [56] Thus, what is pertinent for the court to consider is the appellant’s evidence in court as his defence, which was tested in cross-examination and in the light of the totality evidence. After all, the substance of the S/N luBQUzR5y0q42tcDn365xg appellant’s 112 statement (D107) was similar to his oral evidence in court. Hence, there was no miscarriage of justice or prejudicial effect to the appellant in the circumstances. The requirement of section 182A of the CPC has been complied with, and the omission to refer to the appellant’s 112 statement (D107) by the court is not fatal to the prosecution's case. [57] On the same issue, we agree with the decision of this court in Sathya Vello v Public Prosecutor [2022] 4 MLJ 111, which states as follows: “There was no merit to the appellant’s contention that the trial judge had failed to consider all the evidence in breach of s 182A of the CPC. Although the trial judge had not considered the appellant’s cautioned statement, it was in substance similar to the appellant’s evidence in court. Hence, the mere omission to refer to the cautioned statement in the judgment was not fatal and did not vitiate the conviction as the cautioned statement added nothing further to the accused’s evidence in court.” (emphasis added) [58] We noted that another panel of this court has reviewed the decision in Sathya Vello, but the review panel issued no grounds of judgment. Be that as it may, as discussed earlier, this panel agrees with the principle of law enunciated in Sathya Vello on this issue. [59] In addition, it is trite that an appeal is a continuation of a hearing, and an appellate court can review the whole evidence and make a finding even on an issue not decided by the trial judge. Thus, the appellate court in the S/N luBQUzR5y0q42tcDn365xg present case can evaluate all the evidence adduced and make a finding whether section 182A has been complied with, even though the appellant’s 112 statement was not mentioned in the trial judge's grounds of judgment. [60] This court in Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613 explained this principle of law as follows: “[20] As regards the first main ground of appeal raised by the appellant, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in the position to do so in the present case, even though the grounds of decision of the trial judge, as appearing in the appeal records, is found lacking in specific findings and with no reason for the finding. In a case involving purely question of fact, the Court of Appeal is free to determine whether or not various findings of the trial court are correct (see Mohamed Mokhtar v Public Prosecutor [1972] 1 MLJ 122). In the present case, even though the Court of Appeal took the view that the High Court judgment was of no assistance, it nevertheless had considered and subjected all the evidence adduced by the prosecution to a critical re-examination. The Court of Appeal had given sound reasons as to why the evidence was admitted and how it had implicated the accused. There was no miscarriage of justice against the appellant as the Court of Appeal’s decision was based on the evidence adduced from the witnesses called by the prosecution as appearing in the appeal records. I am therefore of the view that the Court of Appeal did not err on this issue.” (emphasis added) [61] Likewise, in the present case, the re-evaluation of evidence by the appellate court on all the evidence in the records of appeal disclosed that at the end of the case, all the evidence had been considered by the trial S/N luBQUzR5y0q42tcDn365xg judge, even without mentioning the appellant's 112 statement (D107) in his grounds of judgment. Here, the Court of Appeal found that section 182A has been complied with, and we agree with the findings of both the trial judge and the majority of the Court of Appeal. The Credibility of PW15 [62] Regarding the credibility of PW15, it is also a settled principle of law that the credibility of a witness is best assessed by the trial judge who has the audio-visual advantage and is able to observe the demeanour of a witness. Unless the finding on the credibility is plainly wrong and not supported by evidence, the appellate court should be slow in disturbing the finding. Further, it is trite that it is not the function of an appellate court to make primary findings of fact. Discrepancies in the evidence of a witness, if not material, should not affect the witness's credibility. [63] This court in Lee Ah Seng v PP [2007] 5 CLJ 1 has succinctly discussed this issue on the credibility of a witness as follows: “[9] The approach to be taken by an appellate court when dealing with a trial court’s assessment of the credibility of a witness is well-established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such findings of fact arrived at by the judge who had audio-visual advantage of the witness, unless there are substantial and compelling reasons for disagreeing with the finding. Discrepancies will always be found in the evidence of a witness, but what a judge has to determine is whether they are minor or S/N luBQUzR5y0q42tcDn365xg material discrepancies. It would be wrong to say just because a witness may have contradicted in his evidence or even told lies on one or two points, his evidence should be totally rejected. In the final analysis, it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject.” (emphasis added) (see also PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (FC); MD Zainuddin bin Raujan v Public Prosecutor [2013] 4 MLJ 596 (FC)) [64] In the present case, the trial judge found that PW15 was a credible witness based on the assessment of her demeanour, her conduct, and tested it against the totality of corroborative evidence before the court. There were also concurrent findings on the credibility of PW15 by the trial judge and the majority of the Court of Appeal. Further, the contradictions of PW15's evidence or her conduct raised by the defence were not material that affect PW15’s credibility. As such, there is no reason for this court to disturb the said findings. [65] In assessing the credibility of PW15, the trial judge not only took into consideration that PW15’s evidence was not shaken during cross-examination but also considered other evidence before the court that enhanced PW15’s credibility, including corroborative evidence. [66] On this issue, counsel for the appellant submitted that PW15’s conduct after the incident does not reflect the conduct of a rape victim. PW15’s conduct, including cleaning herself in the bathroom, mopping the said appellant’s semen, washing the mop, and looking calm when she met S/N luBQUzR5y0q42tcDn365xg PW6, PW7, and PW23, was submitted, is not the conduct of a victim who has been raped. [67] In this regard, PW15’s conduct has to be analysed in the context of the totality of evidence. Firstly, PW15 testified that earlier, she had been warned by the appellant that PW15 must not inform the appellant’s wife (DW2) about his misconduct against PW15, or if not, they would die and PW15 would die first. Further, PW15 conducts when she telephones PW3 thrice in a state of panic and crying, informing him about the rape incidents, and crying when informed PW16 before lodging the police report, supported the conduct of a rape victim. The forensic evidence by PW5 also shows fresh tears of her hymen that are consistent with PW15’s story of being raped. [68] Next, the issue of the unexplained landline from which PW15 made the three calls to PW3 was raised by the defence. It was contended that the calls were not from the landline of the appellant’s house, as testified by PW15. We find that this contradiction is not material, having considered the totality of the evidence. The material evidence here was the content of the calls, and PW3 actually received the three calls. Thus, the said contradiction does not affect PW15’s credibility. [69] Counsel for the appellant further raised the issue that PW15 did not inform her mother about the rape when she met her at the Indonesian embassy two months after the incident. However, this has been explained in her re-examination, when she said that she did not inform her mother because she felt guilty and did not want her mother to be worried. In her S/N luBQUzR5y0q42tcDn365xg words, PW15 said this, “saya rasa bersalah dan saya takut ibu saya khuatir”. The explanation is reasonable and not something inherently incredible. [70] Counsel for the appellant also raised the issue that no DNA of the appellant was found on the mop that was used to mop the appellant’s semen in the said room. The evidence before the court was that PW15 had mopped the sticky liquid found on the floor after the incident with a mop that was already soaked with soap. The existence or non-existence of the appellant’s DNA on the said mop is subject to various factors that could not be conclusively determined by the forensic expert. In any event, the DNA evidence is only corroborative in nature and would not affect the prosecution's case if there is sufficient evidence to prove the element of the offence beyond a reasonable doubt. We are also of the view that the non-existence of the appellant's DNA on the mop does not affect PW15’s credibility, in the light of the totality of evidence. [71] The corroborative nature of DNA evidence has been explained, among others, in the case of Ng Mee Yee & Anor v PP [2025] 6 CLJ 343; Lingeswaran Ambalakhan v PP [2025] CLJU 1473; Francis Abuchi Odike v Public Prosecutor [2015] 1 LNS 928 and Lee Gee Hian v Public Prosecutor [2021] 1 LNS 1895. [72] In the circumstances, we find no reason for this court to disturb the findings of the trial judge and the majority of the Court of Appeal in their findings on the credibility of PW15. S/N luBQUzR5y0q42tcDn365xg The Corroboration of PW15’s Evidence [73] The next pertinent issue raised in the present case is the corroboration of PW15’s evidence. It was submitted by counsel for the appellant that PW15’s evidence was not corroborated by any independent evidence, and PW15’s evidence itself is not credible. Therefore, the findings by the trial judge and the majority of the Court of Appeal that PW15’s evidence was corroborated by other evidence are an appealable error. [74] It is a trite law that the corroborative evidence must itself be credible. The essence of corroborative evidence, among others, is that one credible witness confirms another credible witness, which will provide credible evidence. (see Yap Ee Kong & Anor v Public Prosecutor [1981] 1 MLJ 144 (FC); TN Nathan v Public Prosecutor [1978] 1 MLJ 134 and DPP v Kilbourne [1973] 1 All ER 440). [75] However, corroborative evidence is not restricted to oral evidence of an independent witness only, but also by established facts as explained in the case of Brabakaran v PP [1966] MLJ 64 (FC) as follows: “Corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. Corroboration can equally well be afforded by established facts, and the logic of established facts sometimes speaks even more eloquently than words.” S/N luBQUzR5y0q42tcDn365xg (emphasis added) [76] Circumstantial evidence can also amount to corroboration if the circumstantial evidence is credible and supports the evidence of another witness. In Tang Kin Seng v Public Prosecutor [1996] 3 SLR(R) 444, Yong Pung How CJ quoted the case of R v Hills [1988] 86 Cr App R 26, which states: “55 …..Corroboration is not infrequently provided by a combination of pieces of circumstantial evidence, each innocuous on its own, which together tend to show that the defendant committed the crime. For example, in a rape case, where the defendant denies he ever had sexual intercourse with the complainant, it may be possible to prove (1) by medical evidence that she had had sexual intercourse within an hour or so prior to the medical examination, (2) by other independent evidence that the defendant and no other man had been with her during that time, (3) that her underclothing was torn and that she had injuries to her private parts. None of these items of evidence on their own would be sufficient to provide the necessary corroboration, but the judge would be entitled to direct the jury that if they were satisfied so as to feel sure that each of those three items would had been proved, the combined effect of the three items would be capable of corroborating the girl’s evidence.” (emphasis added) Chief Justice Yong Pung How further commented as follows: “[56] This is but common sense. The only surprise is that it took so long for it to be recognized. If a conviction for an offence can be secured solely on S/N luBQUzR5y0q42tcDn365xg circumstantial evidence, there is no reason at all why corroboration cannot also be based purely on circumstantial evidence. The contrary position would lead to the absurdity that the prosecution’s case is stronger if the victim is unable to give evidence.” (emphasis added) (see also Attan bin Abdul Ghani v Public Prosecutor [1970] 2 MLJ 143b) [77] In a sexual offence case, such as a rape offence, although there is no legal requirement for corroborating evidence, it is prudent to have corroborative evidence supporting the evidence of the victim. The corroboration will enhance the credibility of the victim and assist in the establishment of the prosecution’s case beyond a reasonable doubt. (see also Din v Public Prosecutor [1964] MLJ 300 (FC)) [78] In the present case, besides there were concurrent findings that PW15’s evidence is credible, there is ample corroborative evidence supporting PW15's evidence. [79] A day after the incident, PW15, on 8 July 2019 at about 11 am, made a phone call to Riki Sapari (PW3), an employee with “Bahagian Tenaga Kerja KBRI”, asking him to rescue her as she had been raped by her employer. During the call, she was crying and sounded panic, and repeatedly said “tolong selamatkan saya” (please save me). She called PW3 three times, where she asked to be rescued, and PW3 then informed her to go to the nearest police station. S/N luBQUzR5y0q42tcDn365xg [80] Next, PW16 (Protected Witness) testified that on 8 July 2019 at about 1.15 pm, PW16 was on the way home driving a car when PW15, who was at the side of the road, waved at him. When PW16 stopped the car, he saw PW15 running to the car and then asked PW16 to send her to the Indonesian Embassy in Kuala Lumpur. PW16 then offered to send her to the taxi stand at Amanjaya Bus Station. Thereafter, PW15 informed PW16 that she had been raped by her employer and started crying. PW16 then brought her to the Jelapang Police Station to lodge a police report. [81] The defence witness, Mohamad Rusdi (DW3), further corroborates PW15’s evidence when DW3 testified that after the incident, PW15 told him, while crying, that she wanted to go back to Indonesia as there were “bad people” at her place. [82] The evidence by PW3, PW16, and DW3 showed that PW15 was in a state of distress when she telephoned PW3 thrice, when PW16 met her and later brought her to the police station, and when she met DW3. This evidence of distress amounts to corroboration of PW15's evidence that she has been raped. [83] In the Tang Kin Seng case (supra), the court acknowledged that evidence of distress amounts to corroboration. The court made the following observations: “88 The same applies for evidence of distress. In R v Redpath (1962) 46 Cr App R 319, it was held that in certain circumstances, evidence of distress may amount to corroboration. In that case, the appellant was seen by a complete S/N luBQUzR5y0q42tcDn365xg stranger to have approached a child and later driving off in a car. The child was observed to be in a very distressed condition shortly afterwards. The child did not know that she was being observed. Lord Parker CJ held that in those circumstances, the child’s distress could amount to corroboration. …. 90 R v Ramesh Chauhan (1981) 73 Cr App R 232 is a case falling between the two extremes, and thus useful. In that case, the accused was left alone in an office with the complainant. The complainant was seen by a colleague running out of the office into the toilet, crying and in an upset state. The colleague followed the complainant in, whereupon the complainant made an immediate complaint to her that she had been molested by the accused. The accused gave evidence that nothing happened in the room and that when the complainant left the room, she appeared normal. The prosecution thought that there was no corroboration, but the recorder disagreed and directed the jury that the distressed state of the complainant could amount to corroboration if they thought that the distress was not feigned and that the complainant was not imagining things. The Court of Appeal held that the recorder was right.” 91 Provided that the pitfalls are kept in mind, there is no reason why the complainant’s distress cannot be a weighty piece of evidence in the right circumstances…” (emphasis added) [84] Likewise, in the present case, the evidence of PW3, who received three phone calls from PW15 during which she was panicked and crying, and informed him that she had been raped, the evidence of PW16, who saw PW15 waving and running after PW16's car, and later cried when she informed him that she had been raped, and the evidence of DW3 that PW15 while crying informed him that there was ‘bad people’ at her work place, were evidence of distress that corroborated PW15's evidence. S/N luBQUzR5y0q42tcDn365xg [85] Next, PW15 lodged a police report (P52) on 8 July 2019, at about 2.12 pm, and the substance of the report was that she was raped by the appellant on 7 July 2019 at about 9:00 pm. [86] Exhibit P52 is PW15’s former statement made to the police, an authority legally competent to investigate the facts. It has a corroborative nature in light of other evidence adduced in the present case. Section 157 of the Evidence Act 1950 states: “In order to corroborate the testimony of a witness, any former statement made by him, whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.” (emphasis added) [87] This court in Lim Guan Eng v Public Prosecutor [2000] 2 MLJ 577, has explained the application of section 157 as follows: “It is our view that under s. 157, a former statement made by a witness is admissible in order to corroborate his testimony. The weight of such a statement for the purpose of corroboration depends on the facts of a particular case. This view is supported by a long line of decided cases. In Liew Wah Ming v PP [1963] 2 MLJ 82, Thompson CJ, said at p 84: Section 157 is clear and unambiguous, and there can be no doubt that in the circumstances laid down in that section, a former statement made by a witness is admissible to corroborate his testimony and with the object of showing S/N luBQUzR5y0q42tcDn365xg consistency. But the weight or value of such a statement as corroboration must always be a question of fact…While, therefore, the former statement of an accomplice or …of a child is admissible to corroborate his testimony and to indicate consistency, the weight to be attached to it must vary with the facts of each case.” (emphasis added) (see also Karthiyayani & Anor v Lee Leong Sin & Anor [1975] 1 MLJ 119 (FC); Public Prosecutor v Samsul Kamar bin Mohd Zain [1988] 2 MLJ 252; and R v Velayuthan [1935] MLJ 277) [88] Reverting to the present case, P52 was lodged by PW15 a day after the incident, and its contents are consistent with her testimony that she was raped by the appellant in the house on 7 July 2019. There is also other oral and documentary evidence that corroborates PW15’s evidence in relation to the rape incident. Thus, P52 is in fact a piece of corroborative evidence in this case. [89] Apart from this, in PW15’s personal diary (P20A), PW15, among others, wrote “Aku benci diriku” (I hate myself), and when asked in court what she meant by these words, PW15 said that she feels “kotor, jijik dan hina” (dirty, disgusting, and humiliated). This is also evidence of distress that corroborates PW15’s evidence, and P20A is her former statement that is consistent with the feelings of a rape victim. In the Lim Guan Eng case (supra), Corporal Stanley typed a written note about the appellant's speech (P6), and this written note was also accepted as corroborative evidence under section 157 of the Evidence Act 1950. S/N luBQUzR5y0q42tcDn365xg [90] Further, there was also the evidence from the CCTV presented by the prosecution. The CCTV showed that at the material time when the incident happened, the appellant’s wife (SD2) and their son, Bryan, went out to McDonald's, and the appellant’s friend, Leong Yeong Wai (PW22), had left the house earlier than SD2. Thus, the appellant was alone in the house with PW15, and this provides the opportunity for the appellant to commit the offence. [91] On this issue, we noted that evidence of opportunity per se cannot amount to corroboration of PW15, but with other circumstantial evidence, as available in the present case, it would lead to a reasonable inference that the offence had happened as testified by PW15. In Ridley v Whipps [1916] 22 CLR 381, Griffith CJ explained: “In the case of Dawson v M, Kenzie (1908) SC 698, the Court of Sessions in Scotland held that the proof of opportunity of intercourse may be corroborative evidence if of such character as to establish suspicion. In my opinion, when reliance is placed upon proof of opportunity, that proof must be supplemented by proof of circumstances of such a nature as to lead to the inference that it was probable that advantage would be taken of the opportunity. It is impossible to define in advance what circumstantial evidence would be sufficient for that purpose.” (emphasis added) [92] In the present case, besides other corroborative evidence, there is also admissible medical evidence of PW5 that corroborates the evidence of the offence of rape against PW15. S/N luBQUzR5y0q42tcDn365xg [93] The medical evidence adduced in the present case was given by Dr Nila Wati (PW5). On 9.7.2019, PW5 examined PW15 at Ipoh General Hospital and found that there were fresh tears at 6 to 8 o’clock of the hymen and also abrasions at 2 o’clock which occurred less than 72 hours from the time of the examination. PW5 also did not rule out that the tears could be caused by penile penetration. This piece of medical evidence corroborates the evidence of PW15 that she was raped 2 days before the medical examination by PW5. Medical evidence corroborates that the evidence of rape victims has been acknowledged in a plethora of cases, such as in Tan Kim Seng v PP (supra) and Augustine Foong Boo Jang v PP [1990] 1 MLJ 225. [94] Counsel for the appellant submitted that if it is true that the appellant was left alone with PW15, it was only for about 10 to 13 minutes, and it is incredulous that the appellant would run the risk of being caught for raping PW15, knowing that his wife could return from McDonald's. Be that as it may, the actual incident of rape is possible to happen within the duration of 10 to 13 minutes, in light of the incident that was relayed by PW15 in this case. Moreover, as testified by PW15, the appellant had sexually harassed her a few times in the appellant’s house before. The rape incident on 7 July 2019 was not the appellant's first sexual misconduct against PW15. [95] In the circumstances, we agree with the concurrent findings of the High Court and the majority of the Court of Appeal that PW15's evidence was sufficiently corroborated by other evidence mentioned earlier. S/N luBQUzR5y0q42tcDn365xg The Consideration of the Appellant’s Defence [96] Having read the notes of proceedings and the grounds of judgment of the trial judge from pages 66 to 100 and pages 4 to 6 of the majority of the Court of Appeal, we find that the appellant’s defence has been sufficiently considered by the trial judge and the majority of the Court of Appeal. The trial judge has considered in detail the defence put forth by the appellant as reflected in paragraphs [106] to [111] of the grounds of judgment, and also the defence’s witness, SD2, as mentioned in paragraph [112] of the grounds of judgment. Further, the trial judge has analysed the defence in light of the totality of evidence as reflected in paragraphs [113] to [126] of the grounds of judgment. The trial judge also ruled out that PW15 invented the story to enable her to return to Indonesia, or the existence of a political ploy. Thereafter, the trial judge concluded that the appellant’s defence was an afterthought and failed to raise a reasonable doubt on the prosecution's case. [97] The majority of the Court of Appeal has also assessed the defence’s case in its grounds of judgment at paragraphs [10] to [12] and [29] to [36], and thereafter, concluded that the conviction by the trial judge is safe and, as such, affirmed the conviction. [98] On the same issue, there were concurrent findings of the trial judge and the majority of the Court of Appeal that the appellant had failed in his defence to raise a reasonable doubt on the prosecution’s case. We agree with these findings as the defence has failed to answer the evidence S/N luBQUzR5y0q42tcDn365xg presented by the prosecution. It is trite that a credible defence, among others, is a defence that answers the evidence of the prosecution. (see also Krishna Rao Gurumurthi v PP & Another Appeal [2009] 2 CLJ 603; Amathevelli P Ramasamy v PP [2009] 3 CLJ 109; Azhar Lazim v PP [2012] 1 LNS 262) [99] In the present case, the appellant’s defence, which includes the appellant’s testimony and other defence witnesses, does not raise a reasonable doubt as to the truth of the prosecution's evidence or the accused's guilt. The Shoddy and Incomplete Investigation [100] Based on the totality of evidence presented to the court, and the analysis discussed earlier, we agree with the concurrent findings of the trial judge and the majority of the Court of Appeal that the elements of the charge under section 376(1) of the Penal Code against the appellant, that there was penetration and without PW15’s consent, have been proven beyond a reasonable doubt. Therefore, the submission that the investigations by PW23 were shoddy and incomplete under the circumstances is untenable. The Admission of Additional Evidence S/N luBQUzR5y0q42tcDn365xg [101] On the issue of the admission of the additional evidence, the defence called an Indonesian lawyer, Pathurrahman (SDT1), who testified that PW15 had come to his office on 20 May 2024 for legal advice. PW15 then informed him that her evidence in the rape trial against the appellant was not true, and PW15 which to retract her evidence. PW15 has concocted the evidence to enable her to return home to Indonesia before the expiry of her contract of service. [102] Pathurrahman prepared a written statement (SDT1), which also contained a letter of statement of PW15 made by Pathurrahman, allegedly upon PW15’s instruction. In the written statement (SDT1), it exhibited, among others, a letter of authorization by PW15 to Pathurrahman. (SDT1(D)). Both SDT1 and SDT1(D) were allegedly signed by PW15. In the letter of statement (SDT1), PW15 purportedly states, in substance, that her evidence in the trial against the appellant, that she was raped by the appellant, was not true, and she made up the story to enable her to return home to Indonesia before the expiry of her contract period. [103] On this issue, first, a witness may testify on relevant facts based on his personal knowledge or perception and not of others. The rule against hearsay evidence has been codified in section 60 of the Evidence Act 1950 and further explained in the landmark case of Subramaniam v PP [1956] 1 MLJ 220 (PC), where it states: “In ruling out peremptorily the evidence of conversation between the terrorists and the appellant, the trial judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. S/N luBQUzR5y0q42tcDn365xg It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships, statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.” (emphasis added) [104] For ease of reference, section 60 of the Evidence Act 1950 is as follows: “60. (1) Oral evidence shall in all cases whatever be direct, that is to say—