Public Prosecutor v Nurashikin Binte Ahmad Borhan

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 October 2002
• Neutral Citation: [2002] SGHC 242
• Date: 16 October 2002
• Subject Matter: Witnesses,Appropriate sentence under s 380 Penal Code (Cap 224, 1985 Rev Ed),Criminal Procedure and Sentencing,Inconsistencies in testimony and demeanour in court,When party can cross-examine own witness,Sentencing,Evidence,Examination,Whether adverse inference should be drawn,Failure to call material witness,Whether trial judge right to consider prosecution witness not to be a credible witness,Evidence Act (Cap 97, 1997 Rev Ed) s 156,Credibility,Evidence Act (Cap 97, 1997 Rev Ed) s 116 illustration (g)
• Docket Number: Magistrate's Appeal No 15 of 2002
• Published date: 19 September 2003
• Defendant Counsel: Respondent in person
• Court: High Court (Singapore)
• Plaintiff Counsel: Hui Choon Kuen (Deputy Public Prosecutor)

Judgment

GROUNDS OF DECISION

The Charge

This was an appeal by the prosecution against the decision of district judge Wong Choon Ning. At the conclusion of the trial, she acquitted the respondent of the following charge:

You, Nurashikin Binte Ahmad Borhan, NRIC No: S 8200294/D are charged that you, on the 17^th of October 2001 at or about 2:30 pm, at ‘Chamelon’ store located at No 1 Jurong West Central 2 #03-06, Singapore, a place used for the custody of property, did commit theft of the following items:

i 1 Rhomlon Eyebrow Pencil valued at $2.20

ii 1 Fuso Eyeliner valued at $7.50

with a total value of $9.70, in the possession of the manager of the said ‘Chamelon’ store, Cheng Siong May and you have hereby committed an offence punishable under Section 380 of the Penal Code, Chapter 224.

2 Section 380 of the Penal Code reads as follows:

Whoever commits theft in any building, tent or vessel, which building, tent, or vessel is used as a human dwelling, or for the custody of property, shall be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to a fine.

The prosecution’s version of events

3 The prosecution called only one witness, Loke Poh Yeng (PW 2) who was working as a sales assistant in the store at the material time. PW 2 testified that she saw the respondent and her friend, one Nor Natasha binte Ibrahim ("Natasha") browsing at the eyeshadows at one of the shelves. The respondent was holding a paper bag. PW 2 was then standing at a spot 2.3 metres away. At that time, PW 2 was able to see only the respondent’s side profile while Natasha had her back turned towards PW 2. Natasha was standing between PW 2 and the respondent.

4 PW 2 gave evidence that she saw the respondent select an eyebrow pencil and a liquid eyeliner (the items mentioned in the charge) from the shelf. The respondent did not place those items back on the shelf. Instead, she held on to those items and walked together with Natasha down the aisle, along the same row of shelves. According to PW 2, Natasha did not touch or select those items while she walked away from the shelf. When the two of them reached the end of that row of shelves, they made a U-turn around it to the other side of the shelf and walked up the aisle in PW 2’s direction. The respondent and Natasha then stopped to browse at some combs.

5 PW 2 then noticed that the respondent no longer had the eyebrow pencil and liquid eyeliner in her hand after she made the U-turn. Suspecting that the respondent might have stolen the items, PW 2 told her colleague ("Yi Zhu") to help her keep watch over the respondent. At the combs section, the respondent selected a comb and paid for it at the cashier’s counter. After payment, the respondent and Natasha left the store, whereupon they were promptly detained by PW 2 and Yi Zhu.

6 The respondent permitted PW2 and Yi Zhu to check her paper bag and they found the two items in the bag. The bag also contained a hair dryer. When asked as to whether she had paid for the items, the respondent indicated that they might have dropped into her bag.

The respondent’s version of events

7 The respondent did not dispute that she was browsing at the two items and that those items were subsequently found in the paper bag she was holding. She however denied knowledge as to how the items came to be found in her bag. She testified that she had placed the items back onto the shelf when she moved away from that shelf. She offered the explanation that the items could have dropped into the bag or someone could have put them into the bag without her knowledge. According to her, the bag belonged to Natasha and she was only helping Natasha carry it. She further asserted that she was stopped and searched outside the shop not by PW 2, but by another salesgirl.

The decision below

8 The judge rejected PW 2’s evidence that the respondent had held on to the two items as she was leaving the shelf where those items were located. The judge also rejected PW 2’s evidence that Natasha had not held on to those items. The relevance of these was that, if Natasha was the one holding on to the items as the respondent and her left the shelf, a reasonable inference might be drawn that it was Natasha, and not the respondent, who had put the items in the bag. PW 2’s evidence was rejected for two main reasons.

9 First, the accuracy of PW 2’s observations might have been affected by her shortsightedness (she was not wearing glasses that day) and the fact that the shop was crowded on that day. Secondly, the judge did not find PW 2 to be a credible witness based on her demeanour in court and the inconsistencies in her evidence.

10 At the conclusion of the trial, the judge found that on the cumulative effect of all the evidence adduced before the court, the prosecution had not proven beyond a reasonable doubt that it was the respondent, and not some other person, who had taken and placed the two items in the bag. She acquitted the respondent.

The appeal

11 Three main issues were raised in this appeal. First, whether the judge had erred in concluding that PW 2 was not a credible witness. Secondly, whether the judge had erred in concluding that the prosecution had failed to prove its case beyond a reasonable doubt. Thirdly, if the appeal was allowed, what would be the appropriate sentence to impose on the respondent.

PW 2’s credibility

12 The judge found PW 2 not to be a credible witness based mainly on her demeanour in court and the inconsistencies in her evidence. It is settled law that due weight should be accorded to the trial judge’s assessment of the veracity or credibility of the witness, given that she had the benefit of observing the demeanour of the particular witness: Jimina Jacee d/o CD Athananasius v PP [2000] 1 SLR 205.

13 The inconsistencies in PW 2’s evidence related to whether, and when, PW 2 had actually seen the respondent place the items in the paper bag. In the initial part of her examination-in-chief, PW 2 testified that the respondent had put the two items into the paper bag when she and Natasha made the U-turn. Subsequently, she changed her testimony and said that the respondent had deposited them into the bag when she was selecting the comb. However when the prosecution invited her to mark on the sketch the position where the respondent put the items into her bag, she changed her testimony yet again and admitted that she had not seen the respondent put the items into her bag, but had merely noticed that the respondent was no longer holding the items after the U-turn and this aroused her suspicions. Nevertheless, at a later stage during further cross-examination, PW 2 once again stated that she had seen the respondent ‘take’ the items.

14 The prosecution attempted to offer various explanations for the inconsistencies. They need not be repeated here but suffice to say that I did not find them convincing. It was clear from PW 2’s testimony that she plainly could not make up her mind as to whether she had actually seen the respondent place the items in her bag. In my opinion, the judge was entitled to find PW 2 not to be a credible witness.

15 The prosecution further submitted that, even if PW 2 was not a credible witness, the judge had erred in law in rejecting the bulk of her evidence. Reliance was placed on Loganatha Venkatesan & Ors v PP [2000] 3 SLR 677 where the court stated at 56:

It is important to bear in mind that an impeachment of the witness’s credit does not automatically lead to a total rejection of his evidence.

The court must carefully scrutinize the whole of the evidence to determine which aspect might be true and which aspect should be disregarded…Thus regardless of whether his credit is impeached, the duty of the court remains, that is, to evaluate the evidence in its entirety to determine which aspect to believe [Emphasis added]

I did not accept the prosecution’s submission on this point. The judge in the present case certainly did not automatically reject the whole of PW 2’s evidence. In fact she had carefully weighed all the circumstances in deciding which...