District Judge Kow Keng Siong:
Introduction
Video evidence is now a common feature of litigation. This is not surprising given the ease in which such evidence can be produced (such as from handphones) as well as the proliferation of video recording devices (such as in-car cameras as well as private/public surveillance cameras).
Yet, despite the proliferation of video evidence, the legal basis for admitting such evidence has seldom been considered in detail in local jurisprudence.
DC/DC 2794/2015 (“DC 2794”) provided a useful opportunity to address this evidential issue. This is because the Defendants’ attempt to admit video evidence in the case had been met with strenuous objections by the Plaintiff. More of this will be discussed shortly.
For the moment, these are the background facts: DC 2794 is the Plaintiff’s claim against the Defendants for damages he had suffered as a result of a road accident. The Plaintiff is an Indian national. At the material time, he was a construction worker in Singapore. The 2nd Defendant operated Annway Transport Services (“Annway”). At the material time, Annway provided bus services to ferry foreign workers from a pick-up point in Tekka Lane back to their respective dormitories. The 1st Defendant was one of the 2nd Defendant’s bus drivers.
The Plaintiff’s case
According to the Plaintiff’s pleaded case – The road accident occurred on 23 September 2012 at about 10.30 pm at the junction of Race Course Road and Tekka Lane. At the material time, the Plaintiff was waiting in a queue to board a private bus bearing the registration number PC 7667A (“the Bus”). Before the Plaintiff could board, the Bus suddenly moved and its front left tyre rolled over his right foot. The accident was caused solely by the negligence of the Bus’s driver.
The Defendants’ case
In their submissions, the Defendants accepted the following: The Bus belonged to the 2nd Defendant. The 1st Defendant was driving the Bus at the time of the accident. The front left wheel of the Bus had rolled over the Plaintiff’s right foot. If the 1st Defendant was found liable for negligent driving, the 2nd Defendant would be vicariously liable for the accident.
The Defendants disputed the Plaintiff’s account of the accident. It was their case that the accident was caused, or contributed to, by the Plaintiff’s own negligence in that he had rushed towards and attempted to board the Bus while it was still moving.
Issues for determination
The key triable issues for DC 2794 were thus the following: How did the accident happen? To what extent were the Plaintiff and the Defendants responsible for the accident?
Preliminary issues
Before addressing these issues, I would like to first deal with some preliminary issues that the Plaintiff had raised at the trial.
Whether the affidavits of the 2nd Defendant and Wong Kelvin were admissible
The first arose because neither Defendants testified at the trial. The 1st Defendant is a Chinese national and had apparently returned to China by the time of the trial. The 2nd Defendant was apparently not able to testify because he was recovering from brain tumour. However, no medical certificate was furnished to confirm this claim.
Instead of coming to court to personally admit his Affidavit of Evidence-in-Chief (“AEIC”) and be subjected to cross-examination, the 2nd Defendant chose to admit his AEIC through his son, Wong Kelvin (“Kelvin”). Kelvin filed an AEIC which enclosed the 2nd Defendant’s AEIC. He also testified at the trial on the contents of the 2nd Defendant’s AEIC as well as on other matters which were within his (i.e., Kelvin’s) personal knowledge.
The Plaintiff submitted that the AEIC of both Kelvin and the 2nd Defendant were inadmissible. This was because what the Defendants were seeking to do was to have the 2nd Defendant’s AEIC admitted without him testifying. According to the Plaintiff, this was objectionable for the following reasons: It was a contravention of O 38 r 2(1) of the Rules of Court which provides that –
… at the trial of an action commenced by writ, evidence-in-chief of a witness shall be given by way of affidavit and, unless the Court otherwise orders or the parties to the action otherwise agree, such a witness shall attend trial for cross-examination and, in default of his attendance, his affidavit shall not be received in evidence except with the leave of the Court.
[emphasis added]
Without the 2nd Defendant affirming his AEIC in court, his AEIC would be inadmissible hearsay evidence. The Plaintiff acknowledged that the Defendants could have attempted to invoke s 32(1)(j)(i) of the Evidence Act to admit the 2nd Defendant’s AEIC. The Plaintiff however submitted that they had failed to prove that the latter was “unfit because of his bodily or mental condition to attend as a witness” – thus failing to satisfy a requirement for s 32(1)(j)(i).
The 2nd Defendant’s account of the accident (as contained in his AEIC) was also inadmissible hearsay evidence. This was because the 2nd Defendant was absent at the accident and did not have any personal knowledge of the matter: s 62(1) of the Evidence Act.
Finally, to the extent that Kelvin’s evidence was based on what he had gathered from the 2nd Defendant, such evidence would be “plainly hearsay upon hearsay”.
I agreed with the Plaintiff’s submissions. Accordingly, I found the AEIC of both the 2nd Defendant and Kelvin to be inadmissible. I did not consider them in determining the triable issues in this case.
Whether Kelvin’s testimony was admissible
The next preliminary issue concerned the admissibility of Kelvin’s testimony. The Plaintiff urged me to disregard Kelvin’s testimony by relying on two submissions.
First, the Plaintiff submitted that if I were to reject Kelvin’s AEIC as being inadmissible –
“… then it necessarily follows that Mr Wong Kelvin’s testimony … is irrelevant. It is equivalent to Mr Wong Kelvin not entering the witness box to give any testimony at all”.
[emphasis in original text]
I was unable to agree with the Plaintiff’s broad-brush treatment of Kelvin’s evidence. There is no reason why, as a matter of principle, the inadmissibility of Kelvin’s AEIC should render his entire testimony irrelevant – or for that matter, inadmissible. In my judgment, whether Kelvin’s testimony is relevant and admissible is highly facts specific. It depended on whether (and if so, which portion of) his testimony was based on his personal knowledge.
In this regard, I noted that Kelvin was in charge of the operational and administrative matters involving the 2nd Defendant’s business. As such, Kelvin had attended at the scene soon after the accident. Kelvin had also testified that (a) cameras were installed on the Bus and video footages (including of the accident) had been recorded, and (b) he had caused these video footages (“Video”) to be extracted from the recording system and produced as evidence in DC 2794. In my judgment, Kelvin’s testimony on such matters – which were within his personal knowledge – was relevant and admissible.
The Plaintiff’s second argument as to why Kelvin’s testimony should be disregarded was on the basis that –
... there was no application by the Defendants at any time, or even at the Trial itself, to seek leave of the Honourable Court to adduce oral evidence from Mr Wong Kelvin in lieu of the general rule that Evidence-in-Chief of a witness must be given by Affidavit. See Order 38 Rule 2(1) of the Rules of Court.
[emphasis added]
I found this submission to be plainly unmeritorious given the following: Kelvin’s testimony during his examination-in-chief was merely confined to confirming and admitting his AEIC. It was the Plaintiff’s counsel who had elicited extensive testimony from Kelvin on various matters (which were not contained in the latter’s AEIC) during cross-examination. One such example was Kelvin’s testimony that the Defendants would be able to obtain the contact details of Peter Tan (a potential witness to the accident) and could thus have contacted him to give evidence. Relying on this piece of evidence, the Plaintiff had urged me to draw adverse inference against the Defendants for not calling Peter Tan as a witness. In my judgment, it would be grossly unjust for the Plaintiff to submit that I should rely on Kelvin’s testimony where it advanced the Plaintiff’s case or discredited the Defendants’ case, but not where such testimony advanced the Defendants’ case or discredited the Plaintiff’s case.
Whether the Video was admissible
The last (and perhaps the most important) preliminary issue concerned the Defendants’ intention to admit the Video in evidence.
To recap, according to Kelvin, the Video showed how the accident had occurred. The Video was played during the trial. It showed the following: The Video showed four quadrants. (The Plaintiff did not dispute the Defendants’ evidence that there were four cameras on the Bus, and that the footages from each of these cameras were shown simultaneously in the quadrant.) Three of the quadrants showed footages. The Plaintiff did not dispute the Defendants’ evidence that these three quadrants showed the following: Channel 2: Traffic coming towards the rear of the Bus. Channel 3: The left exterior side of the Bus. Channel 4: The right exterior side of the Bus. In the Video, Channel 1 – which was supposed to show footages of the interior of the Bus – was a blue/blank screen. This was because the camera/recording system for Channel 1 was not working at the material time. The date and time of the footages were shown at the top right-hand corner of the Video. Channel 3 showed the following: For about two minutes before the accident, the Bus was moving and stopping intermittently. During the times when the Bus stopped, its passenger door remained closed. The 1st Defendant did not...
