Lee Siew Boon Winston v PP

• Jurisdiction: Singapore
• Judgment Date: 20 July 2015
• Date: 20 July 2015
• Docket Number: Magistrate's Appeal No 111 of 2014
• Court: High Court (Singapore)

Lee Siew Boon Winston

Plaintiff

and

Public Prosecutor

Defendant

[2015] SGHC 186

Chan Seng Onn J

Magistrate's Appeal No 111 of 2014

High Court

Criminal Law—Offences—Criminal force and assault—Doctor alleged to have used criminal force with intention to outrage modesty of female patient—Whether patient's evidence unusually convincing—Whether Prosecution's case proved beyond reasonable doubt—Section 354 (1) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Disclosure—Prosecution resisting disclosure while Defence seeking disclosure—Appropriate procedure in order to decide if complainant's statements had to be disclosed—Whether complainant's statements made to police had to be disclosed to Defence

Criminal Procedure and Sentencing—Sentencing—Appeals—Accused convicted of two counts of using criminal force with intention to outrage modesty of complainant—Whether global sentence of ten months' imprisonment manifestly excessive

The appellant, a general practitioner (‘GP’), was convicted on two counts of using criminal force on the complainant with the intention to outrage the modesty of the complainant under s 354 (1) of the Penal Code (Cap 224, 2008 Rev Ed) and was sentenced to a global term of ten months' imprisonment.

The two charges stated that the appellant had inserted his hand into the complainant's left brassiere cup and touched her left breast and nipple on twodifferent occasions. The first occasion was on 8 June 2011 (‘the 8 June Incident’) and the second was on 30 October 2011 (‘the 30 October Incident’). Both incidents occurred at the appellant's clinic.

On the same day as the 30 June Incident, the complainant texted her then boss and another doctor to check if the appellant's actions were appropriate in the circumstances. In September 2012, she started seeing a psychiatrist from Raffles Hospital. She was diagnosed to have ‘Post Traumatic Stress Disorder’ (‘PTSD’).

The appellant's defence at trial was not a bare denial. Essentially on both incidents, the appellant claimed that he placed his clenched right fist on the complainant's sternum, slightly to the left and on top of her clothes. He did this in order to show the complainant the site and nature of the pain she would feel in her chest when she over-exercised or exercised when she was not fully recovered.

The trial judge found that the complainant was unusually convincing and disbelieved the appellant's version of events. He convicted the appellant on both charges and sentenced the appellant to ten months' imprisonment for the charge in relation to the 30 October Incident and nine months' imprisonment for the charge in relation to the 8 June Incident. He ordered the imprisonment sentences to run concurrently.

The appellant appealed against both conviction and sentence. On appeal, counsel for the appellant raised various arguments to show why the trial judge had erred in convicting the appellant. Counsel for the appellant also argued that the Prosecution had breached its disclosure obligation because it failed to disclose the statements the complainant made to the police.

Held, dismissing the appeal:

[Editorial note: The paragraphs indicated in parentheses in holdings (1) - (4) and (10) are not reported. They can be found in the unreported version of the judgment ([2015] SGHC 186) on Law Net.]

(1) The trial judge's findings were primarily based on the credibility of the complainant and not on inferences drawn from primary objective facts. An appellate court in such a case had to be satisfied that the inconsistencies and deficiencies, both internal and external, were sufficiently material and significant such that it could be said that the trial judge was plainly wrong in finding the complainant unusually convincing and therefore plainly wrong in finding that the Prosecution's case was proven beyond a reasonable doubt. Minor or insignificant inconsistencies would not suffice to meet the threshold required for appellate intervention: (at [60] and [65]).

(2) A finding that the complainant's testimony was unusually convincing was part of the analysis when determining the final question of whether the Prosecution had proved its case beyond a reasonable doubt. Even where the evidence of the complainant was not unusually convincing, the legal burden of the Prosecution might still be discharged if there was sufficient corroboration. An assessment of all relevant evidence encompassed the entirety of the evidence before the trial judge which included the evidence of the other Prosecution witnesses, the appellant and all the other evidence adduced by the Defence that had been properly admitted at the trial: (at [63], [73] and [75]).

(3) There was a difference in the probative value of an entry on the GP's treatment card and the absence of an entry on the treatment card. This was especially so where the contemporaneous record was one which was not detailed nor meant to record everything that was said. In general, when evaluating a contemporaneous record for probative value, the entire context had to be borne in mind. This included careful attention to the nature of the document (including how detailed it was or meant to be), the purpose for which it was created, the circumstances in which it was created and how it was subsequently used. These factors were not meant to be exhaustive but merely underscored the importance of adopting a contextual approach: (at [105] and [106]).

(4) The trial judge was not plainly wrong in holding that the complainant's testimony was unusually convincing. The testimony of the appellant was beset with inconsistencies and was on the whole far less logical than that of the complainant. In these circumstances, even without corroboration the trial judge was not plainly wrong in finding that the charges against the appellant had been proved beyond a reasonable doubt: (at [142]).

(5) The Prosecution had a continuing obligation of disclosure that only ended when the case had been completely disposed of, including any appeal (‘the Kadar obligation’). Accordingly, counsel for the appellant was allowed to submit on the grounds that he was seeking disclosure of the complainant's statement (s) to the police. If the statement (s) had to be disclosed, it meant that the Prosecution was in breach of the Kadar obligation: at [151] .

(6) The court was the ultimate arbiter of the credibility and relevance of exculpatory evidence. It should not be subject to an opaque, purely internal and subjective exercise of discretion. However, not all unused material which appeared on its face to be exculpatory irrespective of the extent of its credibility would have to be placed before the court by the Prosecution. Only material which qualified under the Kadar obligation was disclosable. Should there be a dispute between the Prosecution and the Defence or uncertainty by the Prosecution over disclosability of the unused material, it was for the court ultimately to determine disclosability in accordance with the standard of disclosure required by the Kadar obligation. The court might in its discretion order the material to be produced before it so that it could examine the material to determine disclosability pursuant to the Kadar obligation: at [162] .

(7) Disclosure was limited to exculpatory material, which was likely to be admissible, objectively prima facie credible and relevant, or material providing a real chance of leading to such evidence by line of inquiry. These requirements were referred to as the ‘Preliminary Thresholds to Disclosure’. Thus whether the material met the Preliminary Thresholds to Disclosure only went towards the question of disclosure of the exculpatory material. This was separate and entirely different from the ultimate question of whether exculpatory evidence voluntarily disclosed by the Prosecution or ordered to do so by the court in accordance with the Preliminary Thresholds to Disclosure and subsequently admitted into evidence at the instance of the Defence, was determined by the court to be factually true or sufficiently relevant and credible when considered together with the rest of the evidence adduced by the Defence, such that it created a reasonable doubt in the Prosecution's case: at [163] .

(8) The applicable procedure in cases where the Prosecution bona fide believed that disclosure was not required since the Preliminary Thresholds to Disclosure had not been met but the Defence contended otherwise was as follows:

1. a. When a trial or appeal began, there was a presumption that the Prosecution had complied with the Kadar obligation. This would mean that the court presumed that all material which should be disclosed had been disclosed.

2. b. This presumption would only be displaced if the court had sufficient reason to doubt that the Prosecution had complied with the Kadar obligation. Once the Defence satisfied the court that there were reasonable grounds for belief that the Prosecution had failed to comply with the Kadar obligation, the court would look to the Prosecution to show that it had complied with its obligation. The Prosecution had to then establish to the satisfaction of the court that it had fulfilled the Kadar obligation since the court would no longer simply presume that there was compliance.

3. c. At that point, the prosecutor in charge of the case should re-evaluate his or her position having regard to the contentions raised by the accused at trial or at the appeal which had caused the presumption of compliance to be rebutted. It was at this point that the Prosecution might inform the court that it was not required to give disclosure due to the operation of any ground under any law.

4. d. Where the Prosecution itself after re-evaluation had doubts whether to disclose, disclosure to the Defence should be the usual course.

5. e. If after re-evaluation, the prosecutor still resisted disclosure, it could choose whatever method it wished to...