YONG CHOO KIONG v Pendakwa Raya (A-05(SH)-317-07/2022)

The appellant was convicted of an offence of rape of his domestic helper ("the victim") under s.376 of the Penal Code and sentenced to 13 years imprisonment and two strokes of the cane in the High Court on the following charge. "Bahawa kamu pada 7 Julai 2019 di antara jam lebih kurang 8.15 malam hingga 9.15 malam, di dalam sebuah bilik di tingkat atas dalam rumah No. 52, Jalan Desa Meru 2, Meru Desa Park, Bandar Meru Raya, 30020 lpoh, di dalam Daerah Kinta, di dalam Negeri Perak telah melakukan rogol terhadap Awang (No. Paspot: AU359249) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 376(1) Kanun Keseksaan."

He has appealed against his conviction and sentence. The majority of this court has decided to dismiss the present appeal by the appellant against his conviction. I find myself unable to agree with the majority view. These are the reasons for my dissent.

The appellant is a state assemblyman for the constituency of Tronoh Perak and a member of the executive council of the Perak State Government. He is married to DW2 and they have four children, daughters Celine and Eunice and sons Brian and Byrce. In 2019, the family lived in a five-bedroom double-storey house in Meru Desa Park, Ipoh, a gated community that had a guard-house equipped with CCTV.

The victim is a 23-year-old Indonesian maid. She began her employment with the appellant's family as a domestic helper in May 2019.

On the morning of 7 July 2019, the appellant and DW2 made a day trip to Kuala Lumpur to send off daughter Eunice who was studying there. They were driven to Kuala Lumpur by one Mr Lee, a family friend (PW22) in his Toyota Alphard bearing the car plate number PLV 8383. Bryce, the youngest child, stayed home with the victim. They returned to the appellant's home in Ipoh sometime after 8.00 pm that day. Mr Lee did not leave straightway but stayed on to have a chat with the appellant for some time in the backyard of the house. At some point thereafter, DW2 left the house with Bryce in her Vellfire BVY 8858 to buy dinner at McDonald's at a drive through outlet that was about 10 minutes away from their home. The victim behaved normally when DW2 returned, and DW2 did not notice anything amiss. The victim continued with her chores.

It was the case for the prosecution that Mr Lee had left the house before DW2 left for McDonald's and that the appellant had raped the victim during this time when there was no one at home.

The next morning at around 11.00 am, the victim telephoned the Indonesian embassy and spoke to PW3. The victim had called the embassy in Kuala Lumpur from a landline 05-5497131. This was not the phone number of the appellant's home. According to PW3, the victim informed her that she had been sexually abused by her employer and that she advised the victim to lodge a police report or find her way to the embassy. The victim then packed her clothes and left the employer's house and waved down a motorist (PW16) who took her to the police station in Ipoh to lodge a report.

The victim was taken to 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 private part. 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. Significantly, there were no bruises or injuries on the victim's body.

The police took possession of the clothes worn by the victim for DNA analysis. They also seized some items that were allegedly used during the rape from the appellant's house. No semen or DNA of the appellant was found on the clothes, vagina and fingernails of the victim or on the other items seized from the appellant's home in the course of investigations.

Police officer, PW19 took possession of CCTV footage from the Meru Desa guardhouse and also McDonalds. PW19 explained that there were discrepancies as regard the timing used in the CCTV systems in both places and the actual time. According to him, the CCTV recording at the Meru Desa guardhouse was 10 minutes fast and 7 minutes slow at McDonalds. It was plainly obvious from the Meru Desa CCTV footage that Mr Lee had indeed left the house before DW2 went to McDonald's.

The victim's testimony was as follows. Around 8.00 pm she was upstairs ironing clothes in Brian's room when DW2 came to inquire if she had eaten. Soon after DW2 had left, the appellant came to the room holding the pants that he had worn to Kuala Lumpur. The appellant closed the curtains and pulled her towards the bed and then knocked her down and tried to be on top of her, she tried to escape, but was unsuccessful. The appellant held both her hands forcibly and then with one hand took off her pants and panties and inserted his penis into her vagina. He was in her for 2 to 3 minutes. When the appellant let go of her hands, she ran away by pushing him and went into the toilet. He followed her into the toilet and tried to kiss her but she managed to push him out and lock the door. The appellant knocked on the door several times and then left.

Continuing with her testimony, the victim stated that after calming down and washing her vagina, she came out of the toilet to continue ironing but stepped on something sticky on the floor which she believed was the appellant's semen. She went down and brought a mop and cleaned it, and then took the mop down to wash it. At this time, she saw Bryce washing his hands after having had his dinner. She noticed a McDonald's box in the dustbin.

Under cross-examination, she maintained the appellant had nonconsensual sex with her and that she was sure that there was penile penetration as she "sudah nikah" at the time.

The appellant elected to give evidence. He denied the charge made against him. The appellant contended that he did not commit the offence because he was never alone with the victim on the night of the alleged rape. According to him, Mr Lee left around 9.00 pm. He then went into the house and saw DW2 and son having their dinner in the kitchen. The appellant stated that he was then still wearing the same clothes he had worn to Kuala Lumpur, i.e. a black or blue t-shirt and a pair of long trousers.

The appellant testified that he then went up to have his shower and changed. At 9.30 pm he made love to his wife and they went to sleep. The appellant alleged that the victim had fabricated the rape in order to return to Indonesia because she was unhappy working for the family and that there was collusion between the victim and the motorist PW16 to falsely frame him. In support of his defence, the appellant relied on his s.112 statement (D107) that was given to the police soon after his arrest. It was exculpatory in nature.

The appellant's evidence was corroborated by the testimony of DW2 who said that she was sure Mr Lee was still around when she returned from McDonald's as she could hear him and the appellant talking. DW2 stated that she saw the victim after coming back from McDonald's and the latter looked normal and was doing her duties as usual.

The trial judge accepted the victim's testimony and convicted the appellant on the charge of rape. He determined that the medical evidence and the Meru Desa CCTV footage supported the victim's version of events and rejected the appellant's defence. He found the victim be a credible witness and that she had remained cogent and firm in all material aspects of her story throughout rigorous cross-examination by the defence counsel. He found her evidence to be unusually convincing as to overcome any doubts that might arise from the lack of corroboration.

By way of contrast, the trial judge had serious doubts about the credibility of the appellant and DW2 and found their evidence demolished by the CCTV footage. He found that the footage showed that the appellant had the opportunity to rape the victim as he was alone with the victim for about 10 to 13 minutes when DW2 and Bryce left for McDonalds. He further found that the appellant's allegation of rape was a ploy to return home could not be believed as the evidence showed that the victim had no reason to be unhappy as she was treated well by the family and was even allowed to use the house phone to call her mother.

Before us, the appeal was argued on 4 main grounds: a. the appellant was prejudiced by the wrong invocation of s.265A of the CPC by the trial judge; b. The trial judge failed to judicially appreciate or evaluate the evidence of the victim; c. That the trial judge failed to appreciate that the investigations of PW23 was shoddy and incomplete; and d. The trial judge failed to give due consideration to the defence of the appellant.

I will deal with these issues seriatim.

The first ground of appeal has to do with the validity of a witness protection order granted by the trial judge on 23 June 2021 pursuant to s.265A CPC. This requires a little narration. On the application of the prosecution, the trial judge had conducted an inquiry on 10 June 2021 as required by sub-sections (2) and (3) of s.265A. Following the inquiry, he granted the protection order to allow the victim and PW16 to give their evidence in anonymity. PW16 was the witness who gave the victim a lift to the police station the day following the alleged rape. As a consequence of the order, both the victim and PW16 gave evidence from behind a screen under the cover of anonymity and the appellant and his counsel were unable to see their faces.

It is submitted by counsel for the appellant that the granting of the protection order was wrong in law and contrary to principle as the trial failed to consider the following facts before granting the order:

That the issue of anonymity does not arise because the identity of the victim was already known to the appellant as at the material time she was working as a maid for the appellant's family;

(ii) That the identity of PW16 was also disclosed by the prosecution in open court as 'Hanif bin Mohamad Wahab" when they sought protection under the Witness Protection Act 2009; and

(iii) That there was no evidence adduced that the victim and PW16 were at the material time under a genuine fear for their safety if their identity was revealed. [23] It is further argued that the trial has been rendered unfair by the erroneous invocation of s.265A by the trial judge which had unjustly curtailed the appellant's counsel's right to cross examine his accuser and PW 16 effectively by observing their demeanour and by looking at their faces. It is submitted that as there is a strong connection between the ability to see the face of a witness and a fair trial, it is essential that any protection order granted must first fulfil the prerequisites of s.265A. In support of this submission, counsel relied on decisions from United Kingdom, Australia and Canada. It would suffice to refer to one of them. [24] This is the decision of the House of Lords in R v Davis [2008] UKHL 36. The appellant had been convicted of murdering two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, to testify should their identities be disclosed. It was submitted on behalf of the appellant that this procedure was contrary both to the common law right of a defendant to be confronted by his accusers and Art 6(3)(d) of the European Convention On Human Rights. Both limbs of this argument were accepted unanimously by the House and it quashed the appellant's conviction for murder and remitted his case back to the court of appeal, to decide whether to order a retrial. Lord Carswell explained: "I agree with the view expressed by the Court of Appeal ...that court would regard it as acceptable to allow a conviction to be based on the testimony of a witness given in the circumstances of the present case, if that were the sole or decisive evidence against the accused. That concept of the sole or decisive evidence has been regularly repeated in the jurisprudence of the court, ..., I consider that the principle is more universal and that it could and should be applied to the anonymising of evidence in criminal trials in this jurisdiction. It is possible to distil some propositions from this review: (a) There is a presumption in favour of open justice and confrontation of a defendant by his accuser. (b) It is possible in principle to allow departures from the basic rule of open justice to some extent, but a clear case of necessity should be made out. (c) The court should be sufficiently satisfied that the witness's reluctance to give evidence in the ordinary manner is genuine and that the extent of his or her fear justifies a degree of anonymity. (d) Anonymising expedients may include the withholding of the witness's name and address, screening of the witness from the defendant and the public, screening from the defendant's legal advisers, disguising of the witness's voice from the defendant and the public and disguising of the voice from the legal advisers. (e) The more of these expedients the court might consider adopting, the stronger the case must be for invading the principle of open justice. Determination of the question depends upon balancing to ensure that the trial continues to be fair. (f) An important consideration is the relative importance of the witness's testimony in the prosecution case. If it constitutes the sole or decisive evidence against the defendant, anonymising which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly. ... Courts trying criminal cases should not be over-ready to resort to such measures, and I would commend to them the words of the Court of Appeal (in the context of reading statements) in R v Arnold [2004] EWCA Crim 1293, para 30 cited in R v Sellick [2005] 1 WLR 3257, 3277, para 55: "We cannot leave this case without sounding a word of caution. The reference in Luca v Italy to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this court concerned with the conduct of criminal trials is likewise. Inevitably, applications under section 23 will follow but this judgment should not be read as a licence for prosecutors. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read. Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendant's article 6(3)(d) rights; even where it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved." [25] In response, the learned deputy public prosecutor denied that the appellant was deprived of justice and a fair trial as the victim and PW16 had been present at the trial to give their evidence and the appellant was given the right to cross-examine them. It is his submission that the fact that the appellant and his counsel were unable to see the victim did not infringe on the appellant's right to a fair trial as s.265A permits it where a witness is reluctant to testify in court for fear of his or her safety. The learned deputy denied that the protection order had undermined the fairness of the trial as the trial judge was able to see the faces of the two witnesses to assess their credibility. Whether trial judge correct in granting the protection order [26] I turn now to consider the rival submissions. It will be helpful, if I set out section 265A in its entirety:

Special provisions relating to protected witness

Notwithstanding section 264, where at any time during any trial, any of the witnesses for the prosecution refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, the Public Prosecutor may make an oral application to the Court for the procedures in this section to apply.

For the purpose of satisfying itself as to the need to protect the identity of the witness, the Court shall hold an inquiry in camera by questioning the witnesses concerned or any other witness in the absence of the accused and his counsel.

If after such inquiry the Court is satisfied as to the need to protect the identity of the witness, the evidence of such witness shall be given in such a manner that the witness would not be visible to the accused and his counsel and further if the witness fears that his voice may be recognized, his evidence shall be given in such manner that he would not be heard by the accused and his counsel.

The evidence given by the witness under subsection (3) shall be given to the accused and his counsel provided that the Court shall cause the evidence leading to the identity of the witness to be concealed.

The Court shall disallow any question by the accused or his counsel to any other witness that would lead to the identification of the witness who has given his evidence under this section.

Where a witness gives evidence in accordance with this section, he shall for the purposes of this Code and the Evidence Act 1950 be deemed to be giving evidence in the presence of the Court, the accused person and his counsel.

The Court shall seal all records that may lead to the identification of the witness who has given evidence under this section. [27] Section 265A of the CPC enables the prosecution to apply to the court for a protection order where a witness seeks anonymity and refuses to testify in court for fear of his or her safety if his identity is revealed. See Aizz Amidie Aziz v PP [2021] 4 CLJ 496. In order to ascertain the legislative purpose behind s.265A, it will be useful to consider the parliamentary debate when the provision of was debated in Parliament. The then defacto Law Minister had stated (as recorded in the Hansard dated 17 May 2016): "Fasal 7 bertujuan untuk memasukkan seksyen baru 265A, 265B dan

Seksyen baru ini mengadakan peruntukan bagi keterangan saksi yang dilindungi diambil melalui tatacara khas. Pindaan ini dicadangkan bagi menangani masalah keengganan saksi untuk memberi keterangan di mahkamah kerana bimbang keselamatan dirinya jika identitinya didedahkan terutamanya dalam kes-kes yang melibatkan kumpulan jenayah terancang. Dengan peruntukan baru yang dicadangkan itu akan lebih ramai saksi berani untuk tampil memberikan keterangan terhadap apa-apa pertuduhan di mahkamah termasuklah terhadap anggota kumpulan jenayah terancang dan dengan keterangan itu, maka sabitan dapat dikenakan terhadap mereka yang melakukan jenayah." [28] This same is repeated in the Explanatory Note to the CPC (Amendment) Bill 2016: "Fasal 7 bertujuan untuk memasukkan seksyen baru 265a, 265b dan 265c ke dalam Akta 593. Seksyen baru itu mengadakan peruntukan bagi keterangan saksi yang dilindung diambil melalui tatacara khas. Pindaan ini dicadangkan bagi menangani masalah keengganan saksi untuk memberi keterangan di mahkamah kerana bimbangkan keselamatan dirinya jika identitinya didedahkan." [29] It is clear from the foregoing passages that s.265A was introduced to give the court the discretionary power to permit witnesses to give evidence anonymously in order to conceal their identities for their safety where this is considered necessary in the interests of justice especially in cases involving organized crime. An accused person in a criminal trial is entitled to confront his accuser in order that he may cross-examine them and challenge their evidence. Being able to see the face of a witness is the most important factor in cross examination. As such, in my view, this discretion ought to be very sparingly exercised and with great caution to ensure that a fair hearing is achieved. It follows that a protection order ought to be made only where the preconditions set out in s.265A have been met. A protection order in favour of an undercover agent would be appropriate as this may be necessary for his own and his family's protection and others because of genuine fear on the part of the witness of retaliation by or on behalf of the accused. [30] The preconditions under s.265A that must be met before the jurisdiction to make a witness protection or anonymity order arises are; "a. that the order is necessary to protect the safety of the witness; and b. and is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that (a) it is important that the witness should testify, and (b) and the witness's refusal to give evidence is based on a genuine fear and the witness would not testify if the order were not made." [31] In my judgement, that the mere fact a witness refuses to testify and is reluctant to have his identity disclosed in the proceedings are ipso facto not sufficient to make this order. There must be credible evidence that shows that the witness's refusal to give evidence is based on a well-founded, real and a genuine fear which justifies the identity of the victim to be protected from disclosure to protect his or her safety. [32] Coming back to the instant case, I am not persuaded that a clear case of necessity was made out. There is no evidence that the victim had reason to fear that her safety was in jeopardy, since she was at the material time in the care and protective custody of the Indonesian embassy. Neither was there any evidence adduced that the appellant or someone on his behalf had threatened or approached her in any way. Moreover, and crucially, her identity was already known to the appellant. As such, there was no basis for a protection order on the ground that the identity of the victim needed to remain anonymous in order to be protected from disclosure for her safety. [33] As for PW16, clearly, he was not even a material witness in the prosecution's narrative as all that he did was to drive the victim to the police station when she told him of the rape. That being so, it is difficult to fathom why a protection order was necessary in his case. There was evidence led by the prosecution fact that a DAP politician had made a police report that PW16 had driven the victim to the police station as PW16 had been threatened by someone at gun point and was paid RM100,000,00. PW16 had lodged a report denying all the allegations in the aforesaid report. In my view, the report by the DAP politician does not constitute a reasonable ground for PW16 to fear that his safety was in danger. [34] For these reasons, I accept the appellant's submission that the trial judge was in error when he invoked s.265A of the CPC to grant the protection order when the statutory prerequisites and the necessity for the order had not been made out. In the result, I am inclined to quash the appellant's conviction for rape. [35] In the event, I am wrong on this issue, I proceed to address the remaining three grounds raised by the appellant to challenge his conviction. Ground 2: Appreciation of victim's evidence [36] The next ground of appeal deals with the victim's credibility. The trial judge as mentioned earlier had found the victim's evidence to be unusually convincing and was supported by the medical evidence, and the testimonies of PW3 and PW16. [37] This is essentially an appeal against the findings of fact made by the trial judge. He was entrusted with the task of evaluating the conflicting evidence of the victim and the appellant in respect of the alleged incident of rape. In this instance, his findings of fact were largely based on his assessment of the credibility of the respective witnesses. At the conclusion of the trial, he accepted the evidence of the victim and rejected the defence's version of events. [38] Given that this appeal largely involves the evaluation of the trial judge's finding of facts below, it is apposite that we remind ourselves of an appellate court's role with respect to the finding of facts made in the course of a trial. The appellate court's power of review with respect to finding of facts is limited because the trial judge is generally better placed to assess the veracity and credibility of witnesses, especially where oral evidence is concerned. However, this rule is not immutable. Where it can be established that the trial judge's assessment is plainly wrong or against the weight of the evidence, the appellate court can and should overturn any such finding. In so doing, the appellate court will evaluate the cogency of the evidence given by the witnesses by testing it against inherent probabilities or against uncontroverted facts. [39] Particularly, in sexual offence cases, experience has shown that people who allege that they have been raped, sometimes, and for various reasons, create false stories. Such allegations are easy to make and frequently very difficult to refute even by a person who is entirely innocent. See PP v Mohamed Malek Che Hassan [2013] 8 CLJ 359 and PP v Emran Nasir [1986] 1 LNS 69. [40] In PP v Mardai [1950] MLJ 33, Spenser-Wilkinson J, expressed the view that in cases of sexual offences, it is unsafe to convict where there is no independent evidence. He said at p 33: Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless, it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant's story. It would be sufficient, in my view, if that corroboration consisted only of a subsequent complaint by the complainant herself provided that the statement implicated the accused and was made at the first reasonable opportunity after the commission of the offence." [41] The trial judge in the instant case found the victim to be unusually convincing as she was unshaken in cross-examination. He further found that in any event, her evidence was corroborated by the medical evidence and that of PW3 and PW16. [42] It is the contention of the appellant's counsel that the trial judge accorded excessive weight to the victim's evidence and wrongly accepted her evidence as credible and compelling. It is said he failed to consider that there were material contradictions and inconsistencies in her evidence. Counsel submitted that in view of the discrepancies and contradictions, the trial judge should not have accepted any part of the victim's evidence unless there was corroboration from independent and extrinsic sources. [43] In response, the learned deputy submitted that there was no basis to disturb the findings of fact made by the trial judge that the victim was unusually convincing. The victim had no reason to falsely implicate the appellant unless the incident had occurred. He further argued that the fact that the appellant's semen was not found in the victim's private part or anywhere else for that matter and the victim had no bruises or injuries on her body does not necessarily mean that the rape did not take place. The medical evidence indicated penetration to the vagina by a blunt object which must have been the appellant's penis. The deputy further submitted that the victim's failure to inform DW2 and the appellant's driver of the rape should not be held against her as it is not inherently improbable that the victim would have felt that their loyalty was to the appellant and they would not have believed her. [44] Having scrutinised the victim's evidence, I find several material inconsistencies and discrepancies on several issues. First, the victim's behaviour immediately after the alleged rape bore no resemblance to the conduct of a genuine rape victim. According to her, after she had cleaned herself in the bathroom, she wanted to continue with the ironing but stepped on something which she thought was semen on the floor of the bedroom. Knowing that the appellant could be downstairs, and could rape her again, she went downstairs to take the mop to clean the floor and then took the mop down again to wash it. Her suspiciously calm conduct especially in erasing the evidence of sexual intercourse as if nothing had happened was difficult to fathom. One would expect her to be traumatised and in a state of shock or in distress after the rape, and not continue with her household chores in a cool, collected and indifferent manner. [45] Second, the victim's allegation that the appellant was aggressive and had forcefully held her hands when he raped her, was not consistent with the medical evidence, which did not show any injuries on the body. One would expect to find some injuries on her body if her account was true. [46] Next, and crucially there are two pieces of contemporaneous evidence that are inconsistent with the victim's allegation of rape. The first is the evidence that PW3 had made a report (P9) after the victim had phoned her. In this police report, PW3 clearly stated that the victim had only complained of sexual harassment by her employer. The second piece is the evidence of PW12 (the witness from the maid agency) who had lodged a report (P10) the same day to the effect that he was contacted by the Indonesian embassy that the victim had complained that "dia telah diberi layanan yang tidak adil daripada majikannya." The allegation took a wholly different complexion and morphed into rape and only surfaced several hours later that day when the victim was taken to the police station by PW16. There was no explanation proffered for the two totally inconsistent versions given by the victim. There is a world of difference between sexual harassment, not being well treated by the employer and rape by the employer. One would expect a rape victim to allege rape in no uncertain terms. [47] Thirdly, the victim alleged she had called PW3 from the appellant's house to report the rape after getting the embassy number from the telephone book, but PW3 testified the call had come from a landline 05- 5497131, which was not the appellant's house telephone number. The victim claimed she did not know anyone at the time to seek help. It begs the question where did the victim call from and why was she not telling the truth on an issue like this. Or are there hidden or unseen hands behind this episode. The prosecution could have easily traced the identity of the owner of the landline number. [48] Fourthly, the absence of the appellant's semen and the appellant's DNA appears on any of the items that was seized, including the mop was not consistent with the victim's version of the facts. The forensic witness PW14 under cross examination accepted that that even if the mop had been washed, semen stains could still remain on the mop. [49] Lastly, the victim alleged that the appellant had taken the opportunity to rape when DW2 had gone to McDonalds and there was no one at home. I find it incredulous that the appellant would have been so desperate and reckless to run the huge risk of being caught for raping the victim by committing the alleged offence knowing that his wife and son could return home at any time from McDonald's especially since McDonalds was only 10 to 13 minutes drive away from his home. And, more importantly, knowing there was a high likelihood that the victim would report the rape to DW2 on seeing her and cry to her for help. [50] On the whole, it is clear to me that there are several shortfalls and inconsistencies in the victim's evidence. With respect to the learned judge, I am far from satisfied that the victim's evidence is "unusually convincing. There are glaring inconsistencies in the victim's evidence, some more material than others. As such her testimony alone was not sufficient, without further corroborative evidence implicating the appellant to ground a conviction. [51] I turn now to consider the corroborative evidence that the trial judge had relied on to call for the defence. First, the medical evidence. The trial judge was satisfied that the medical evidence corroborated the victim's allegation of rape. It is true that the medical evidence showed a fresh tear in her hymen and an abrasion, but this ipso facto, does not indicate that the victim was raped. PW5 and PW6, the doctors who examined the victim, agreed under cross examination that there were other possible causes like masturbation or self-pleasure with the finger, for the tear in the victim's hymen besides sexual intercourse, i.e. that injuries were also consistent with consensual sex and masturbation. Both PW5 and PW6 could not conclusively testify that the tear and abrasion were because of penile penetration. That being so, it could not be said that the medical evidence afforded corroboration of the victim's story of a sexual assault. [52] Next, I turn to consider the victims complaints to PW3 and PW16. The trial judge held that her complaints to them was corroboration of the victim's evidence. Section 159 of the Evidence Act states: "In order to corroborate the testimony of a witness, any former statement made by such witness, 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." [53] Section 159 allows as corroboration any former statements made by a witness to buttress the witness's credibility by showing that his or testimony in court is consistent with his or her previous statement. It is instructive in this regard to refer to the judgment of the Federal Court in Ah Mee v Public Prosecutor [1967] 1 MLJ 220 wherein Ong Hock Thye FJ explained: "With respect, corroboration in the legal sense connotes some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence: see Clynes (1960) 44 Cr App R 158 161. Consistency is not such corroboration and section 157 of the Evidence Ordinance should be read in the light of my exegesis thereof in the case of Mohamed Ali [1962] MLJ 230 231, which I quote: It will not be out of place here to say a few words about section 157 of the Evidence Ordinance. Admissibility of a previous statement under that section must not be confused with the weight to be given to it. Corroboration, strictly speaking, means independent corroboration as explained in R Baskerville [1916] 2 KB 658; 12 Cr App R 81. In my opinion true corroboration by independent evidence from an extraneous source should be distinguished from "corroboration" as it appears in section 157, which rests on the principle that consistency between a previous statement by a witness and his present evidence may afford some ground for believing him. The value of such a statement as corroboration may be infinitesimal, as in the majority of cases it is. On the other hand, by reason of the abundance of detail it may contain as to the facts and circumstances surrounding any relevant transaction, it may be capable of being cross-checked for truthfulness against other relevant evidence, in which case, of course, it may be effective corroboration, but only because it has been shown to be true." [54] I accept that by reason of s.159 of the Evidence Act, the victim's complaint to PW3 and PW16 and the lodging of the police report are technically corroboration of the victim's evidence. However, it is clear from Ah Mee v PP that these are not corroboration by independent evidence as all complaints had originated from the victim. In my view, if the victim's evidence is not unusually convincing, it is difficult to fathom how the fact that the victim had repeated it several times can add much weight to it. It is imperative to note that at the first opportunity the victim had not complained of rape but of sexual harassment and of not being treated well by her employer. [55] In my view, her complaints to PW3 and PW16 and the lodging of the police report is suspect and have little additional evidential value. Corroboration by virtue of s 159 alone is not corroboration by independent evidence. In the present case, it is noteworthy that there is absolutely no Baskerville type of corroboration. i.e. that the corroborating evidence must be independent and must conform in a material particular that the accused committed the offence. [56] The learned trial judge held that he was persuaded that the victim was unusually convincing as she was unshaken in cross-examination. It is instructive in this regard to refer to the case of Muniandy & Ors V Public Prosecutor [1966] 1 MLJ 257, where the Federal Court explained: "In the instant case, it is stated by the learned trial judge as the ground for his belief in the main prosecution witnesses, that they had been unshaken in cross-examination. In our view, being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration. The fact that the trial judge believed implicitly in the truthfulness of Nagarachnam and Ramasamy does not preclude closer scrutiny of their evidence and this we have done." [57] In my judgment, the discrepancies within the victim's testimony, as well as the contradictions raised several serious doubts as to the veracity of the allegation made by her. In finding her to be unusually convincing the trial judge resolved almost every ambiguity in the evidence in the victim's favour and ignored the glaring inconsistencies and discrepancies in her evidence. The contradictions in her evidence would have sufficed to create a reasonable doubt in the case for the prosecution. [58] I therefore conclude that the trial judge erred in finding that the victim was unusually convincing and there was corroboration of her evidence. Ground 3: Shoddy investigation [59] Next, it is the appellant's contention that there was no proper investigation done by the investigating officer and he has been prejudiced by the same. I find this complaint to be without substance. Ground 4: Evaluation of the defence evidence [60] The trial judge did not accept the appellant defence that he had no opportunity to rape the victim as he found that Mr Lim had left the appellant's home before DW2 left for McDonald's. He made this finding based on the CCTV footage. He further found the defence of the appellant to be an afterthought and a bare denial. [61] The appellant raised 2 points under this heading. First, the trial judge had breached section 182A of the CPC in failing to consider the appellant's s.112 statement to the police. Second, the trial judge made a grave mistake in coming to his conclusion that the appellant's defence was an afterthought and a bare denial as it was consistent with his s.112 statement and was amply corroborated by Mr Lee and DW2. [62] As regards s.182A of the CPC, it is common ground that this section mandates the trial judge to consider all the evidence adduced before him in deciding whether the prosecution has proved its case beyond reasonable doubt. As stated earlier, the appellant had provided a s.112 statement to the police soon after his arrest which was consistent with his oral evidence in court. It is not in dispute that the trial judge made no mention of the appellant's s.112 statement at all in his grounds of judgment. Counsel contended that constitutes a breach of s.182A and this is a serious error warranting appellate intervention and cited numerous authorities in support of this proposition. [63] In answer, the learned deputy submitted that although the trial judge had not considered the appellant's s.112 statement, he pointed out that it was in substance similar to the appellant's evidence in court. Hence, the omission to refer to the s.112 statement in the judgment was not fatal and did not vitiate the conviction as the statement added nothing further to the appellant's evidence that was given in court. It was argued that the appellant was not prejudiced by the non-consideration of his s.112 statement. [64] In my view, the prosecution's contention is contrary to the decision of this Court in Prasit Punyang v Public Prosecutor [2014] 4 MLJ 282 and a recent decision of the Federal Court on review in Sathya Vello v PP [Federal Court Criminal Appeal No:05(M)-10-01-2020(B). In both these cases, the cautioned statement of the accused was similar, if not identical to the oral evidence given in court. In Prasit Punyang, it was observed: "In the context of the present case, the cautioned statement tendered by the appellant is one of the evidence which the learned JC should take into consideration in order to make a finding whether or not the prosecution has proved its case beyond reasonable doubt. ... The learned JC must consider carefully whether the cautioned statement is capable of raising a reasonable doubt on the prosecution case. The appellants cautioned statement was recorded a day after the arrest of the appellant. It is important, therefore, to point out that the appellant had mentioned the basic facts of his defence at a very early stage of the police investigation against him. .. The impact of the totality of the cautioned statement on the prosecution case or innocence of the appellant has to be kept in mind in coming to the conclusion as to the guilt of the appellant. .. the learned JC had failed to adequately direct his mind as to the truth of the appellants version as stated the cautioned statement... We are of the view that at the conclusion of the trial, the learned JC should have properly addressed his mind in connection with the cautioned statement of the appellant in deciding whether the prosecution has proved its case beyond reasonable doubt. .. The fact that the defence is not a recent fabrication is supported by the contents of the appellants cautioned statement which is substantively similar to his defence advanced .. It was then the duty of the learned JC to consider the defence of the appellant in the light of the cautioned statement that he had given to the police a day after he was arrested. On the facts of the present case, the failure on the part of the learned JC to consider and evaluate the appellants cautioned statement constituted a serious non-direction which amounts to a misdirection, warranting appellate intervention. Such a misdirection is an appealable error. [65] The aforesaid decision was subsequently affirmed by the Federal Court. [66] In Sathya Vello v PP, a similar complaint was taken by the defence that the trial judge had failed to consider the appellant's cautioned statement, and the appellant's sister's evidence. The Federal Court set aside the conviction on the ground that a breach of section 182A is fatal and cannot be cured by the proviso to section 92 of the Court of Judicature Act. The extempore judgement is reproduced: "A long line of cases has established that the proviso to section 92(1) of the CJA is utilized with care and circumspection in rare cases. The majority of case law however does not support the legal position that the proviso may be utilized to circumvent a breach of Section 182A of the CPC where such breach has occasioned a miscarriage of justice. This latter element will turn on the fact of each particular case. In the instant case, having examined the facts, we are of the unanimous view that the nonconsideration of the accused cautioned statement and his sister's evidence has occasioned material prejudice resulting to miscarriage of justice. This is therefore not a fit case to apply proviso under Section 92(1) of the CJA. Even if we invoke Section 37(d) of the DDA, such that the sister's evidence is also considered, it is probable on a balance of evidence would have rebutted presumption of knowledge. Accordingly, we find merit on the appeal. On the totality of the evidence, we find the conviction unsafe, we therefore allowed the appeal, we set aside the conviction and sentenced, the appellant is acquitted and discharged." [67] In my view, the two cases discussed in the preceding paragraphs illustrate that the failure to consider a s.112 statement made by an accused person, even if it is consistent and in accord with the appellant's oral testimony in court, is a serious breach under s.182A and cannot be cured by the proviso to s.92 of the Court of Judicature Act. [68] In view of the position I take on the failure of the trial judge to consider the appellant's s.112 statement, I do not find it is necessary to consider the defence complaint, that the trial judge was wrong in holding that the appellant's defence was an afterthought and bare denial, save and except to say that I accept the trial judge's finding that Mr Lee had left the appellant's home before DW2 left for McDonald's. This, however, does not mean that the appellant had raped the victim. This is a case that boiled down to the victim's word against the appellant's and the latter's version raises grave doubts about the victim's allegation of rape. Conclusion [69] For the reasons given, I am of the view that the appellant's conviction is unsafe and unsatisfactory. I am therefore minded to allow the appeal and set aside the conviction and sentence against the appellant. Dated: 25 March 2024 -Sgd- (S.M. KOMATHY SUPPIAH) Judge Court of Appeal Malaysia Putrajaya Counsel/ Solicitors For the Appellant: Datuk Hisyam Teh Poh Teik (Together with Dato' Rajpal Singh, Encik Salim Bashir, Tiew Poh Nee, Low Wei Lon and Hannah Kam) [Messrs Hisyam Teh & Co. (Kuala Lumpur) and Messrs Rajpal, Firah & Vishnu (Batu Caves)] For the Respondent: Mohd Amril bin Johari (Together with Mohd Fuad bin Abdul Aziz) [Attorney General's Chambers]