District Judge Soh Tze Bian:
CHARGE
The accused person, Lee Yeow Chor (“AP”) claimed trial to the following charge:
“…you, on 26 February 2021, at about 6.56 am, on a public bus service number 243W (bearing vehicle registration number SBS 7398H), at Boon Lay Bus Interchange, Singapore, did use criminal force to the victim (female/then 16 years old), to wit, by touching her right breast over her clothes with your hand, intending to outrage her modesty, and you have thereby committed an offence punishable under Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)..”
Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) provides that :” Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.
PROSECUTION’S CASE
To prove its case against the AP, the Prosecution called 5 witnesses and tendered a list of exhibits as follows: Prosecution list of witnesses
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| No | Witness | Role | Marking | Language |
| 1 | CYW | Victim | PW1 | English |
| 2 | Koh Shu-Min | Evangeline Social Worker | PW2 | English |
| 3 | Noor Izwan Bin Saleh | Investigation Officer | PW3 | English |
| 4 | Mohamed Jameel Bin Shaik Dawood | Bus Driver | PW4 | Malay |
| 5 | Shirmin Chew | Victim’s friend | PW5 | English |
List of prosecution exhibits | |
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| S/ No. | Exhibit | Marking |
| 1 | First Information Report bearing Report No.: J/20210303/7059 dated 3 March 2021 | P1 |
| 2. | One DVD-ROM containing four videos of CCTV footage from the bus | P2 |
| 3. | Arrest Report bearing Report No.: J/20210318/2177 dated 18 March 2021 | P3 |
| 4. | Seizure Report bearing Report No.: J/20210319/2248 dated 19 March 2021 | P4 |
| 5 | AP’s EZ link card records | P5 |
CLOSE OF THE PROSECUTION’S CASE
At the close of the Prosecution’s case, the Defence made an application on no case to answer which I had dismissed for the following reasons:
LAW ON APPLICATION ON NO CASE TO ANSWER
Sections 230(1)(e), (j) and (k) of the Criminal Procedure Code (“CPC”) set out the procedures which must be complied with at the trial in all courts as follows:
“(1)(e): the prosecutor must then examine his witness, if any, and each of them may in turn be cross-examined by the Accused and every co-Accused, after which the prosecutor may reply to the submission;”
“(1)(j): …if after considering the evidence referred to in paragraph (e), the court is of the view that there is some evidence which is not inherently incredible and which satisfies each and every element of the charge as framed by the prosecutor or as altered or framed by the court, the court must call on the Accused to give his defence;” (emphasis added)
“(1)(k):.. the court must order a discharge amounting to an acquittal if it is of the view that there is no such evidence as referred to in paragraph (j)”. (emphasis added )
Section 230(1)(j) of the CPC is the statutory codification of the test set out in the seminal decision of the Privy Council in Haw Tua Tau and others v PP [1981 – 1982] SLR(R) 133 at [17]:
“As a decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding “that no case against the accused has been made out which if unrebutted would warrant his conviction” …”
In Re Nalpon Zero Geraldo Mario [2012] 3 SLR 440 (“Re Nalpon”) (at [24] to [26]), the High Court had made the following observations: “A prima facie case” in this context simply means a case of such a nature that the accused can be lawfully convicted on the evidence as it stands at the close of the Prosecution’s case (assuming such evidence is accepted by the court) on the basis that such evidence would either prove every element of the offence in question directly or enable its existence to be inferred. In this regard, it is important to bear in mind that the evidence as it stands at the close of the Prosecution’s case, even if accepted by the court, may not be sufficient to prove every element of the offence when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Where the evidence adduced to prove a primary fact is discredited or wholly unreliable, there is no need for the court to even presume that that evidence is true unless it is inherently incredible: this is because that evidence has already clearly been shown to be wholly unreliable. Further, even if the court were to apply the inherent incredibility exception in such a situation, the court cannot presume that an inference drawn from a primary fact is true unless that inference can reasonably be drawn. The court may not draw any inference which it likes from primary facts just because the inference is credible, or just because the inference is not inherently incredible. There is a distinction between, on the one hand, accepting evidence of primary facts as true for the purposes of deciding whether to call on the Defence at the close of the Prosecution’s case and, on the other hand, inferring further facts from those primary facts for that purpose. The question to be decided at the close of the Prosecution’s case is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on that evidence, he could lawfully be convicted. Calling for the accused’s defence at the close of the Prosecution’s case only brings the proceedings to the next stage, when the accused is expected to rebut the Prosecution’s prima facie case. Even if the Defence is called, should the accused elect not to enter his defence, the court may still acquit him if, on a final evaluation of all the evidence adduced before it, it concludes that the charge has not been proved beyond a reasonable doubt – a burden which never shifts to the accused.(emphasis added)
In PP v Wong Wee Keong and another appeal [2016] SHC 84, the High Court, after citing Re Nalpon laid out the following guiding propositions when deciding whether to call on the accused to enter his defence (at [33]) (emphasis added) below: All evidence of primary fact should be accepted as being true, unless it is so inherently incredible that no reasonable person would be able to accept it as being true or if it has been discredited or shown to be wholly unreliable. It is not enough that the inference may be credible or not inherently incredible. In this regard, there is a different standard which applies to primary facts and inferences insofar as the former should be accepted as true unless it is inherently incredible whereas inferences can only be accepted if they can reasonably be drawn. It is not necessary that the inference be irresistible or that it must be the only possible inference that may be drawn from the facts. The totality of the evidence has to be considered when determining whether evidence is so inherently incredible that it can be accepted or if the inferences sought to be drawn are reasonable enough to pass muster. The court cannot only look to those parts of the evidence which are favourable to the prosecution’s case and ignore those which are detrimental; i.e., it cannot pick out only the plums and leave the duff behind.
DISMISSAL OF THE DEFENCE’S APPLICATION ON NO CASE TO ANSWER
After careful consideration of the evidence adduced at the close of the Prosecution’s case and the written submissions of both parties, I dismissed the Defence application on no case to answer. I agreed with the Prosecution as I took the view that at the close of the Prosecution’s case, there is some evidence which is not inherently incredible and which satisfies each and every element of the charge in MAC 910469/2021 and I would therefore call on the AP to give his defence as required under s 230(1)(j) of the CPC. My reasons are as follows: At trial, the Prosecution adduced evidence from five witnesses (PW1 to PW5). One was the victim (PW1) who testified as to how her modesty was outraged and that the AP intruded on her private part. Three other witnesses gave corroborative evidence on what the victim told them of her experience of being molested. The Investigation officer testified as to how investigations led to the AP’s arrest. The elements of the proceeded s 354(1) charge are as follows: The AP intended to outrage the victim’s modesty; and The AP used criminal force on the victim. As submitted by the Prosecution, the undisputed facts are as follows: Both the AP and the victim were on a public bus service number 243W (bearing vehicle registration number SBS 7398H) at Boon Lay Bus Interchange on 26 February 2021, at about 6.56 am. The AP and the victim alighted at the same bus interchange stop. The victim was in her school uniform. The victim and the AP are not known to each other. The AP was arrested by the police on the afternoon of 18 March 2021. The various items listed in the seizure report (exhibit marked “P4”) were seized from the AP. In the course of its case, the Prosecution has led evidence from the victim, who is a credible witness of fact, to show that the AP did use criminal force on the victim. The victim has testified consistently that the AP had touched her right breast over her clothes with his hand while she was going down the stairs in the bus. The victim also confirmed that she told what happened to PW2 Koh Shu-Min, Evangeline, PW4 Mohamed Jameel...
