XP v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 04 July 2008
• Neutral Citation: [2008] SGHC 107
• Date: 04 July 2008
• Subject Matter: Import of presumption of innocence remaining unrebutted,Witnesses,Proof of evidence,Accused convicted on two complainants' charges but acquitted of other two complainants' charges,Statutory offences,Evidence,Whether complainants unusually convincing,Whether Prosecution's case proved beyond reasonable doubt,Criminal Law,Complainants' testimonies uncorroborated or contradicted by other witnesses,Whether collusion disproved beyond reasonable doubt,Outrage of modesty,Standard of proof,Section 354 Penal Code (Cap 224, 1985 Rev Ed),Need for reasoned grounds explaining judge's differing conclusions vis-a-vis different complainants,Multiple complainants,Penal Code (Cap 224, 1985 Rev Ed)
• Docket Number: Magistrate's Appeal No 50 of 2007
• Published date: 09 July 2008
• Defendant Counsel: Leong Wing Tuck and Hon Yi (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Plaintiff Counsel: Engelin Teh SC and Thomas Sim (Engelin Teh Practice LLC)

4 July 2008 Judgment reserved.

V K Rajah JA:

1 The present appeal against convictions and sentence arose from a battery of grave accusations levelled against the appellant, concerning primarily outrage of modesty offences under s 354 of the Penal Code (Cap 224, 1985 Rev Ed). These consisted of 19 original charges, brought by seven different complainants; ten of the charges were, however, stood down. Of the remaining nine charges (involving four complainants), the appellant was acquitted of six charges and convicted of three (involving the two complainants in the present appeal, E and D).

2 The appellant, a physics teacher at an all boys’ school (“the School”) was in charge of the water polo co-curricular activity (“CCA”) for the periods of 2001–2002 and 2004–2005. Between 2002 and 2003, he took leave of absence to pursue further education. The alleged offences were committed in 2001 and 2004, when the two complainants were in Secondary 1 and Secondary 2 respectively. The first complainant, E, was admitted to Secondary 1 in 2001 and joined the water polo and swimming CCAs. In 2004, he first informed the head of department of CCAs, Mrs AA, and later the principal of the school (“the Principal”) about his distress over the appellant’s conduct towards some of the other boys. Remarkably, his own personal allegations only fully surfaced in 2005, after he had left the School. Following a sensational 80-day-long trial spread over a period from 10 April to 31 December 2006, the appellant was convicted only of the following three charges (collectively “the Charges”):

AMENDED 16^th CHARGE:

You,

[the appellant], male/33 years
…

are charged that you, on a day in early 2001 in the afternoon, during the waterpolo training session at Toa Payoh Swimming Complex changing room toilet, Singapore, did use criminal force to one [E], male/13 years, knowing it to be likely that you will thereby outrage the modesty of the said person, to wit, by massaging his groin area and holding his penis, and you have thereby committed an offence punishable under Section 354 of the Penal Code, chapter 224.

AMENDED 17^th CHARGE:

You,

[the appellant], male/33 years
…

are charged that you, during the waterpolo and swimming team camp sometime in 2001, in the afternoon, in a container [portakabin] housing the Prefects’ Room at the old compound of [X Secondary School], Singapore, did use criminal force to one [E], male/13 years, knowing it to be likely that you will thereby outrage the modesty of the said person, to wit, by massaging and rubbing his bare chest, and you have thereby committed an offence punishable under Section 354 of the Penal Code, chapter 224.

AMENDED 15^th CHARGE:

You,

[the appellant], male/33 years
…

are charged that you, between the 6^th day to the 9^th day of June 2004, at about 3am at the Gymnasium Aerobics Room, [the School], Singapore, did use criminal force to one [D], male/14 years, knowing it to be likely that you will thereby outrage the modesty of the said person, to wit, by groping and stroking his buttocks, and you have thereby committed an offence punishable under Section 354 of the Penal Code, chapter 224.

3 The appellant has consistently denied all the allegations levelled against him though he has readily acknowledged that he conducted “sports checks” on the water polo boys on one occasion in 2001 to ensure that they had not sustained any back injuries from the sport. Nor was it disputed that the appellant and some of the boys would give each other massages to relieve muscle aches and pains. However, the appellant strenuously denied that he had ever molested any of the boys. He fervently and resolutely maintained that the complainants had colluded to bring false charges against him because they bitterly resented his strict authoritarian style of managing the team. The trial judge (“the Judge”) was unconvinced. She found the two complainants E and D to be “unusually convincing” witnesses and convicted the appellant on these three charges, sentencing him to nine months’ imprisonment on the 16th charge, four months’ imprisonment on the 17th charge and three months’ imprisonment on the 15th charge. The sentences on the 15th and 16th charges would run consecutively, while the sentence on the 17th charge would run concurrently, adding up to 12 months’ imprisonment in all.

4 Having heard the parties and examined the notes of evidence as well as the exhibits, I had little hesitation in concluding that there were decidedly reasonable doubts concerning the appellant’s guilt on each of the three remaining charges. The convictions were mistakenly founded on conflicting evidence, certain aspects of which were rather improbable, and plainly unsafe. I do not propose to revisit every factual detail and evidential peccadillo as much of this has already been adequately covered in PP v XP [2007] SGDC 285 (“GD”). It would be far more appropriate and constructive to consider the legal framework for the fundamental evidential issues articulated in the trial judge’s GD, as well as the principal evidential planks on which the Judge’s convictions rested.

Dramatis personae: The key witnesses

5 I set the stage by briefly introducing the key witnesses for the Prosecution as well as highlighting the main issues arising from their testimonies.

The complainants

6 The first complainant, E, entered the School in Secondary 1 in 2001. Soon after, he joined the swimming and water polo CCAs. He was 16 years old and in Secondary 4 when he first alluded vaguely to the alleged incidents when he met with Mrs AA and the Principal (see [2] above), though, and rather crucially, E’s account of his meetings with Mrs AA and the Principal differed from theirs. He graduated from the School at the end of 2004 and was no longer a student of the School when the formal complaint to the Principal was made on 30 April 2005. Both his complaints, it bears reiterating, were about alleged incidents that had taken place some four years earlier. At the time of the trial he was 18 years old.

7 The second complainant, D, joined the School in 2003 as a Secondary 1 student. He was allegedly molested by the appellant in 2004 when he was 14 years old. At the time of the trial he was 16 years old. The other two complainants at the trial, B and C, joined the School in 2001 and 2002 respectively. B, like E, was 13 years old when the alleged offence occurred, and C alleged that he was molested at the ages of 12, 15 and 16. At the time of the trial, B was 18 and C was 17. The four complainants were good friends though E claimed that they had drifted apart after he left the School.

8 Two other complainants, W and G, whose accusations the Prosecution initially crystallised into charges but later withdrew, also testified for the Prosecution. W and G gave evidence relevant to the 15th charge; W claimed to have slept on the other side of D when the alleged groping incident occurred. Despite D himself testifying, to the contrary, that he had slept next to C, the Judge nevertheless decided that she “could not ignore” the evidence of W and G that D had “told them that he was ‘freaked out’ by the [appellant’s] conduct the morning after they had seen him sleeping next to the [appellant] as this casual remark confirmed that he was still affected by the incident the next morning” (GD at [239]).

The other prosecution witnesses

9 Ms BB was E’s mathematics teacher when he was in Secondary 2. E said he would sometimes go to her classroom after school to chat. He testified that in 2003 he told her about the alleged “sports check” incident, but Ms BB later corrected, in her testimony, her initial statement to the police and affirmed unequivocally that the conversation only took place in 2004, after the appellant had returned to the School. This of course did not sit well with E’s evidence. I carefully assessed her testimony. There is no reason not to accept the entirety of her testimony. Indeed, the Judge did not find her to be an unreliable witness. Rather, for apparently implausible reasons, she sought to rely on Ms BB’s earlier statement despite her very cogent reasons for departing from it (see [47] and [48] below).

10 Mrs AA was the head of department of CCAs. At a casual lunch at Wisma Atria in 2004, E and another complainant, C, told Mrs AA that they were unhappy about the appellant sleeping in close proximity with members of the water polo team. She testified that she advised E to lodge a complaint with the School, and E said he would do so after the national swimming competition in July 2004.

11 Among the other boys called as prosecution witnesses were O, the water polo team captain in 2004–2005, K and H. The appellant’s counsel vigorously emphasised that their testimonies contradicted D’s evidence that the appellant had slept next to him. A water polo team coach, Coach 2, also testified for the Prosecution. His testimony undermined the Prosecution’s case but the Judge did not rely in any significant way on his evidence for reasons which are not entirely clear.

The defence witnesses

12 The Defence called the Principal, whom the Prosecution conceded “came across as an honest witness”. The Principal’s testimony also departed in some aspects from his police statement in relation to the 17th charge. He explained that his recollection in court was more reliable as he had not been adequately prepared for the police interview when he gave his statement. The Judge rejected his testimony, finding that he was unable to explain why he had given two versions about the alleged incident (GD at [160]–[162]). Despite the Principal himself recanting from his earlier police statement (Exh P95), the Judge allowed it to be substituted for his oral testimony under s 147(3) of the Evidence Act (Cap 97, 1997 Rev Ed), and relied on it as “a critical piece of evidence” which, among other things, “revealed that the [appellant] had admitted to the Principal that he had given a massage to E in...