YONG CHOO KIONG

YONG CHOO KIONG

The court held that while the proffered documents and testimony were relevant, they constituted hearsay aimed at proving the truth of a recantation and therefore were inadmissible because the defence failed to satisfy statutory prerequisites under s32(1) Evidence Act 1950 (no adequate proof SP15 could not be produced and no sufficient diligent efforts under Criminal Procedure Code), the documents' authenticity was doubtful (material inconsistencies and signature discrepancies) and, consequently, the additional evidence could not, when assessed with the trial record, raise a reasonable doubt; conviction should be maintained pending the Federal Court's determination.

Citation
AA-45-2-12/2020 (Mahkamah Tinggi)
Parties
Prosecution: Pendakwa Raya; Accused/convict: Yong Choo Kiong
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 July 2022
Case Number
AA-45-2-12/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Rape (section 376(1) Penal Code) / Post Conviction Hearing on Admissibility of Additional/fresh Evidence Pursuant to Federal Court Order
Outcome
Additional evidence (Ekshibit SDT1 and SDT1(D)) rejected as inadmissible hearsay; conviction for rape under Section 376(1) maintained as not undermined by the proffered evidence; matter left to Federal Court to decide further
Legal Topics
Fresh Evidence, Hearsay, Section 32 Evidence Act 1950, Signature/authenticity, Burden of Proof (s103 Evidence Act), Reasonable Doubt, Rape, Admissibility of Documentary Evidence
Source Language
Malay/English
Criminal Law Evidence Law Appellate Procedure Fresh Evidence Hearsay Section 32 Evidence Act 1950 Signature/authenticity Burden of Proof (s103 Evidence Act) +3 more

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Parties

Pendakwa Raya

Prosecution

Yong Choo Kiong

Accused/convict

Procedural Posture

Criminal Rape (section 376(1) Penal Code) / Post Conviction Hearing on Admissibility of Additional/fresh Evidence Pursuant to Federal Court Order

Legal Issues

  1. 1 Whether the additional evidence (Ekshibit SDT1 and SDT1(D)) qualifies as admissible fresh evidence
  2. 2 Whether the additional evidence is hearsay and if any statutory exception (s32 Evidence Act 1950) applies
  3. 3 Whether the additional documents and SDT1's testimony are credible and authentic (including signature comparison)

Ratio Decidendi

The court held that while the proffered documents and testimony were relevant, they constituted hearsay aimed at proving the truth of a recantation and therefore were inadmissible because the defence failed to satisfy statutory prerequisites under s32(1) Evidence Act 1950 (no adequate proof SP15 could not be produced and no sufficient diligent efforts under Criminal Procedure Code), the documents' authenticity was doubtful (material inconsistencies and signature discrepancies) and, consequently, the additional evidence could not, when assessed with the trial record, raise a reasonable doubt; conviction should be maintained pending the Federal Court's determination.

Court Disposition

Additional evidence (Ekshibit SDT1 and SDT1(D)) rejected as inadmissible hearsay; conviction for rape under Section 376(1) maintained as not undermined by the proffered evidence; matter left to Federal Court to decide further

Orders

  • Ekshibit SDT1 and SDT1(D) not admitted and shall not be considered as substantiating a recantation or creating reasonable doubt
  • The court maintains its finding that no reasonable doubt was raised and the conviction stands; matter referred back to the Federal Court for final determination as appropriate