Public Prosecutor v Elangovan s/o Raju

• Judge: Gilbert Low Teik Seang
• Judgment Date: 15 January 2001
• Neutral Citation: [2001] SGMC 6
• Citation: [2001] SGMC 6
• Published date: 19 September 2003
• Court: Magistrates' Court (Singapore)

JUDGMENT:

Grounds of Decision

1. The accused claimed trial to the following charge in MAC 4150/2000 (P1):

"You,

Elangovan s/o Raju M/40 yrs
NRIC No: S1343081J
D.O.B.: 2.11.1959
Singaporean Citizen

are charged that you on or about the 17^th day of February 2000 at or about 2.17 am at a coffeeshop located at Blk 505 West Coast Drive, Singapore, intending to insult the modesty of one Low Gim Nee F/45 yrs, exposed your private parts in front of her and you have thereby committed an offence punishable under Section 509 of the Penal Code, Chapter 224."

PROSECUTION'S CASE

2. In the early hours of 17 February 2000 at about 2.17 am, the complainant, Miss Low Gim Nee, was sitting at a coffee-shop table at Block 505 West Coast Drive Singapore with her companion, Lim Ah Leh ("PW3") when she saw the accused, an Indian man, exposing his penis at his table which was about 1 metre away from hers. Before that, the complainant alleged that the accused was behaving in a weird manner and kept looking at her. As PW3 was blocking her view of the accused, the complainant asked PW3 to shift aside to let her have a good look at the latter. The accused continuously looked at her and she ignored him. When she turned around to have a look at him again, she saw him exposing his penis. As it was dark, the complainant took a second look at the accused to confirm what she saw. According to her, the accused was placing both his hands on his thighs and exposing his penis. He was also caressing his abdomen.

3. Under cross-examination, the complainant conceded that the two occasions when she saw the accused exposing his penis amounted to a few seconds each, with the first being a fleeting glance and the second being slightly longer. She accordingly informed PW3 about what she saw and PW3 agreed with her that she should call the police. At no time did PW3, whose back was facing the accused, turn around to look at the accused at all. (In his evidence throughout, PW3 did not witness the accused exposing his penis). The complainant then stood up, walked a distance away and called the police using her handphone. Whilst doing so, she kept attention on what the accused was doing to make sure that he did not go away. From her observation at that moment, the accused stood up, walked towards the road and tried to call a taxi. Upon failing to get a taxi, he then returned to the coffee-shop and made a phone call on his handphone. Following from the complainant's phone call, the police subsequently arrived and arrested the accused who was sitting at his table.

4. According to PW3, when the complainant told him that the accused had showed her his penis, he did not turn around to see because he had already advised her to call the police and there was no need for him to turn around to see the accused. PW3 also testified that when the complainant left the table to make the phone call to the police, the accused, from his table, shouted at him to borrow his lighter. PW3 ignored him. The accused then came over to his table to borrow his lighter. At this point, PW3 lent it to him. As PW3 did not witness the accused exposing his penis, the prosecution's case solely rested on what the complainant saw.

DEFENCE'S CASE

5. The accused denied exposing his penis to the complainant at the material time, both in his testimony in Court and in his statement recorded pursuant to section 122(6) of the Criminal Procedure Code (Exhibit B). In the evening of 16 February 2000, he had some drinks with his friends at a coffee-shop in Jurong East. At midnight, they then proceeded to a hawker centre near Block 505 West Coast Drive for some more drinks. The group parted ways at about 1:30 am (in the early hours of 17 February 2000) and the accused proceeded to the coffee-shop at Block 505 West Coast Drive, which was near the main road. The reason being that he wanted to look out for a taxi and have a drink at the same time. After buying himself a drink, he went towards the table which was closest to the road to scout for any approaching taxi.

6. Whilst at the table, he received some calls on his handphone from his friend regarding some money matters. After the calls, he approached PW3 who was sitting at the table to his left and asked PW3 to lend him his lighter, which PW3 did. At that time, the complainant was not at the table with PW3. (It was the accused's testimony that he did not notice the complainant at all until his subsequent arrest by the police.) After borrowing the lighter, the accused returned to his seat. When he saw a taxi approaching, he left his table and attempted to stop it. When he failed to do so, he returned to his seat and took out a piece of paper and his pen to do some calculations (pursuant to his telephone calls on money matters with his friend). When he noticed the nib of his pen missing, he started searching for it around the floor area. After succeeding in finding the nib on the floor, two police officers appeared and asked whether he had disturbed the complainant. He denied doing so. After some altercation with the officers on this, he was arrested and taken to the police station.

FINDINGS

7. The main issue was whether the accused exposed his penis to the complainant at the material time. There was no dispute as regards the identification of the accused. After assessing the evidence adduced from both sides, it was my finding that there was a reasonable doubt as regards the commission of the alleged act by the accused. I now set out my reasons for coming to this conclusion.

Lighting Condition at the Scene

8. It was not disputed that the table where the accused sat was near the road-side. It was the accused's testimony that the lighting condition at around his table was not very bright. In her examination-in-chief, the complainant conceded that the place where the accused was seated was dark (see page 21, figure E of the Notes of Evidence). That was why she had to take a second look to confirm what she saw. However, under cross-examination (at page 33, figure C of the Notes of Evidence), when Defence Counsel put forth to her that the place where the accused was seated was dark, which was a reiteration of what she said in her examination-in-chief, she disagreed with the assertion. I then sought her clarification on this, to which her reply was that it was "bright enough to see things".

9. It must be borne in mind that the alleged incident occurred in the early hours of the morning at about 2:17 am. Photograph 4 of Exhibit P2 which was adduced by the prosecution and taken at around 3 am on the same morning by Cpl Sharin bin Nordin (PW4), indicated that the scene was still dark at that time. The photograph also indicated that the table where the accused was seated was at the darker part of the coffee-shop. I therefore accepted the accused's testimony that the lighting condition at around his table was not very bright.

Seating Positions of the Complainant, PW3 and the Accused

10. When shown photograph 4 of Exhibit P2, the complainant and PW3 gave different positions of where they were seated at their table in relation to the accused. They were simply unhelpful in this regard. The reason as explained by the complainant was that when the photograph was taken, the chairs on her table had already been re-arranged. On the other hand, the accused was clearer on where he was seated at his table. He testified that he was seated at the chair on the foreground, which was nearest to where the can of drink and glass were as shown on the same photograph. Taking into account his testimony that he was having a drink at the material time, I saw no reason to disbelieve him on where he was seated.

11. Both the complainant and PW3 were unable to give their exact seating positions on their own table. However, what was clear from the complainant's evidence was that initially, her view of the accused was blocked by PW3. That was...