Public Prosecutor v Mohammad Nurshahid bin Ahmad

• Jurisdiction: Singapore
• Judge: Prem Raj Prabakaran
• Judgment Date: 30 June 2020
• Neutral Citation: [2020] SGMC 36
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Complaint Notice No 901885 of 2017, Magistrate’s Appeal No 9080 of 2020
• Year: 2020
• Published date: 09 July 2020
• Hearing Date: 26 August 2019,28 February 2019,24 September 2018,27 February 2019,01 March 2019,27 August 2019,23 March 2020,25 September 2018
• Plaintiff Counsel: Asran Abdul Samad and Han Ming Kuang (Attorney-General's Chambers)
• Defendant Counsel: Shaneet Nityanand Rai and Pramnath Vijayakumar (Criminal Legal Aid Scheme, The Law Society of Singapore)
• Citation: [2020] SGMC 36

District Judge Prem Raj Prabakaran: Introduction

Mohammad Nurshahid bin Ahmad (“Shahid”) claimed trial to a charge for voluntarily causing hurt, an offence under s 323 of the Penal Code (Cap 224, 2008 Rev Ed). The Prosecution averred he had punched one Muhammad Shahdam bin Junabi (“the Complainant”) “on [the] mouth once”. This allegedly happened on 16 February 2017 “at or about 3:42 a.m., along the pavement at No. 1 Bayfront Avenue, Marina Bay Sands” (“the Pavement”).

Shahid was part of a group of eight (“the Group”) that met in the evening of 15 February 2017. The Group comprised five males and three females. Sometime in the early morning of 16 February 2017, at least two males from the Group assaulted the Complainant, repeatedly, after he swore and spat at them (“the initial assault”). Among other things, the Complainant was punched and kicked several times in his face and head. The identities of two of these assailants was not disputed. But, it was the Complainant’s evidence that at least one other male was involved in this initial assault. The identity of this third male was never established during the trial. That said, the Prosecution accepted, at trial, that Shahid was never involved in this initial assault.

The initial assault was not a fleeing one. It endured from the Pavement to the middle of the road. It ended only when Shahid and some others from the Group intervened. It was common ground between the Prosecution and the Defence that Shahid was the “last and only person” from the Group to help the Complainant (who was lying on the road) to his feet after the initial assault. Weighing at about 125kg, the Complainant was more than two times Shahid’s weight.¹ It was also common ground that Shahid told the Complainant to leave the area, and the Complainant thanked Shahid for helping him up. That said, it was the Prosecution’s case that the Complainant then directed a supposedly provocative remark at Shahid (which referred to a fictitious gangster). This remark purportedly “caused [Shahid] to snap”², and he punched the Complainant “on [the] mouth once” (“the alleged punch”).

I acquitted Shahid after a seven-day trial, in which three different versions as to the alleged punch emerged from the Complainant. In examination-in-chief and cross-examination in the first tranche of the trial (“the first tranche”), the Complainant said the person who had helped him up following the initial assault also punched him in the mouth after his supposedly provocative remark. But, he recanted his evidence when the Defence resumed its cross-examination in the second tranche of the trial (“the second tranche”).³ This change in evidence led to the Prosecution cross-examining him on his three previous investigation statements. It did so with the intention of persuading the court to substitute his now unfavourable testimony with his statements (which it averred were inconsistent with his second tranche testimony, but consistent with his first tranche testimony). The first of these statements was recorded a mere two hours after the initial assault. It was also the most detailed of the Complainant’s statements. But, it was also inconsistent with the Complainant’s first tranche testimony – for it implicated one of the males involved in the initial assault as having thrown the alleged punch (viz., not Shahid, who the Prosecution accepted, at trial, was never involved in the initial assault). There were also other inconsistencies in the Complainant’s first tranche testimony, and gaps in the case advanced by the Prosecution. Reasonable doubt arose within the Prosecution’s case, and on the totality of the evidence.

Scope of these grounds

I delivered brief grounds when acquitting Shahid, and indicated I would provide detailed grounds if the need arose. The Public Prosecutor has since appealed the order of acquittal. I therefore set out my detailed grounds.

In explaining the change in his evidence, the Complainant made certain claims against the trial prosecutor (“the APP”) and the Investigation Officer (“the IO”). These claims related to their conduct during the three pre-trial witness preparation sessions they had with him. The first two of these sessions were held on 15 August 2018 and 10 September 2018. The third session was conducted on 24 September 2018 – one day before the Complainant testified in court.⁴ The Complainant’s claims led to another prosecutor (“the DPP”) appearing in place of the APP, to clarify the nature of these claims. The Prosecution did not dispute that the APP and/or the IO conducted themselves in the manner described by the Complainant. That said, the Complainant testified that the APP did not tell him to lie.⁵ But, the Defence argued that the conduct of the APP and/or the IO had the effect of leading the Complainant to internalise certain points. As such, it submitted that it would be “perilous to give any weight to [the Complainant’s testimony in] the first tranche”.⁶

The “simple principle” in witness preparation is that “the witness’s evidence must remain his own” (Ernest Ferdinand Perez De La Sala v Compania De Navegacion Palomar, SA and others and other appeals [2018] 1 SLR 894 (“Ernest Ferdinand”) at [136]). In Ernest Ferdinand, the Court of Appeal observed that “at least three rules” flowed from this principle. The third rule relates to group preparation or training of witnesses, and is inapplicable in this case. The court’s observations on the remaining two rules appear below: 137 From this simple principle [that a witness’s evidence must remain his own], at least three rules follow, the breach of which may – depending on all the circumstances – lead the court to accord less weight (or even no weight) to the resulting testimony. We emphasise that these are rules of thumb and not to be applied mechanistically. The ultimate question is still whether the preparation has compromised the fundamental principle that the witness’s evidence must be his own independent testimony. 138 First, and most obviously, the solicitor in preparing (not coaching or training) the witness must not allow other persons – including the solicitor – to actually supplant or supplement the witness’s own evidence. 139 Secondly, even if the first rule is observed, the preparation should not be too lengthy or repetitive. As the Hong Kong Court of Appeal observed in HKSAR v Tse Tat Fung [2010] HKCA 156 at [73]…, the court must guard against “repetitive ‘drilling’ of a witness to a degree where his true recollection of events is supplanted by another version suggested to him by an interviewer or other party”. Even if no one ever tells the witness to change his evidence, the exercise by its nature carries an inherent danger. Over time, oblique comments, non-verbal cues, and the general shape of the questioning (especially when reiterated) may influence the witness to adopt answers which he does not believe to be the truth, but which he has surmised would be more favourable to his case. Indeed, a witness may even come to convince himself, quite sincerely, that the more favourable answer is the true one.

[emphasis in italics in original; emphasis added in bold]

In coming to my decision to acquit Shahid, I had assumed that the Complainant’s evidence in the first tranche was his own independent, unvarnished, and uncontaminated testimony. I did not, therefore, accord less weight to it on account of his claims about his witness preparation sessions with the APP and/or the IO. There was ultimately no need for me to delve into whether the Complainant’s testimony in the first tranche had been contaminated by these witness preparation sessions. This was because the case advanced by the Prosecution was already, on its own, so fraught with inconsistencies. A finding that the Complainant’s testimony in the first tranche was contaminated by these witness preparation sessions would only have weakened the Prosecution’s case further and bolstered the grounds for acquitting Shahid.

Facts that were not disputed

Many aspects of the evidence adduced before the court were not disputed during the trial. These aspects are set out in this section.

Events on 15-16 February 2017

The Group comprised eight persons – five males and three females:⁷

Name	Gender	Testified
Mohamed Nazrin bin Mohamed Bari @ “Ajin” (“Nazrin”)	Male	Yes
Tan Chun Ming @ “Adik” (“Tan”)	Male	Yes
Hazlan bin Ahmad @ “Andy” (“Hazlan”)	Male	Yes
“Sadik” (or “Sadiq”)	Male	No
Shahid	Male	Yes
Nazrin’s wife	Female	No
Tan’s wife	Female	No
Shahid’s wife: Nor Katijah binte Abdullah (“Katijah”)	Female	Yes

All eight members of the Group had met in the evening of 15 February 2017 to celebrate Nazrin’s birthday.⁸ A room at the Marina Bay Sands Hotel (“the Hotel”) had been booked for this purpose.

Shahid had picked his wife up in his lorry on 15 February 2017 after work. They went to pick up Tan, Hazlan, Nazrin, and “Sadik” thereafter.⁹ The party of six travelled to the Hotel, where they met Nazrin’s wife and Tan’s wife. The Group then went up to the room that had been booked. In the room, the Group eventually decided to go to a club. As Shahid was still in his “work clothes”, he returned home with his wife to change his attire. Hazlan followed them as he wanted to borrow a long-sleeved shirt from Shahid.¹⁰ When the three of them returned to the Hotel, the Group left for a club in Shahid’s lorry. They remained in the club for about an hour before they decided to return to the Hotel in the lorry. After alighting from the lorry, they proceeded to walk back to the Hotel. Along the way, they stopped to smoke near a smoking point along the Pavement.¹¹ There was a parapet next to this smoking point. Shahid and his wife smoked at a point along this parapet (D3-1). The rest of the Group smoked close to a bin...