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Grounds publishedDecided 18 Apr 2012
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Court of Appeal

AOF v Public Prosecutor

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[2012] SGCA 26Case no. Criminal Appeal No 25 of 2010

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  1. Andrew Phang Boon Leong JA (delivering the judgment of the court):

  2. Introduction

  3. [1] The importance of granularly examining the facts in determining the outcome of contested criminal proceedings cannot be overstated. Certainly, the importance of such intense scrutiny needs no reiteration where sexual offences without any objective corroboration are in question. This was indeed the case here and this will also explain the need for meticulous attention to the detailed facts that constitute the core of the present judgment. As a consequence of this scrutiny, significant evidential gaps were revealed. This resulted in the present appeal having to be heard in two tranches whilst further evidence was sought. As we shall see, this exercise was not a wholly successful one although the new facts that were unearthed were significant in confirming the inadequacy of the evidence before this court that (in turn) led to our decision. This, then, was one central strand in the present appeal. It was inextricably connected with a second.

  4. [2] The second central strand consisted in that precious and indispensable “golden thread” which runs “[t]hroughout the web of the English Criminal Law” (see per Viscount Sankey LC in the leading House of Lords decision of Woolmington v The Director of Public Prosecutions [1935] AC 462 at 481) – and, we might add, Singapore Criminal Law as well. That “golden thread” is, of course, the fundamental principle that the Prosecution bears the legal burden of proving its case against the accused (here, the Appellant) beyond a reasonable doubt. This principle has been stated in the local context in far too many cases to be enumerated here. More importantly (and as already mentioned), it is inextricably connected to the first central strand simply because the facts are an integral part of the process by which the court ascertains whether or not the legal burden just referred to has been discharged.

  5. [3] Given the crucial importance of the facts in the context of the present appeal and (in particular) the detailed analysis that follows, it would be helpful to first set out a table of contents to guide the reader, as follows:

  6. [4] Before proceeding to consider the salient facts in the detail that is required, a little by way of preliminary background is appropriate. Close to three years ago on 30 April 2009, the Appellant was arrested by the police after his daughter (“C1”) dramatically alleged that she had been repeatedly and systematically raped by her father over a period of 10 years. She was then 16 years-old. The rapes allegedly took place at a one bedroom rental flat where the Appellant’s family resided (“the flat”).

  7. [5] In the High Court, the Prosecution proceeded against the Appellant on the following five charges (out of a total of nine charges), which will henceforth be referred to as the first to fifth charges, respectively:

  8. [6] Four other charges for fellatio in 2000 and rape in 2004, July 2006 and November 2006 were stood down by the Prosecution at the start of the trial. The last charge was amended by the trial judge (“the Judge”) at the conclusion of the Prosecution’s case by deleting “undoing” and substituting the words “attempting to undo.”

  9. [7] The trial commenced with the Appellant conducting his own defence and speaking through a Malay interpreter. On 27 August 2010, after 12 Prosecution witnesses had testified, including C1, at the first tranche of the trial (“the first tranche of the trial”), the Appellant informed the court that his family wished to engage legal representation for him. The Appellant’s father confirmed that the family would be instructing lawyers to represent the Appellant. The trial was thus adjourned for the family to do so.

  10. [8] On 30 August 2010, newly-appointed counsel confirmed that they had been instructed to act for the Appellant and applied for time to study the notes of evidence and to take further instructions. They asked the Judge if they could recall, for the purpose of cross-examination only, four Prosecution witnesses: PW6 (SSSGT Mohamed Lathiff) (“Lathiff”), PW9 (Dr Cindy Pang), PW10 (the ex-wife of the Appellant and mother of C1) (“the mother”) and PW12 (“C1”). The Prosecution had no objection to the recall of these witnesses. Accordingly, the Judge acceded to Appellant’s counsel’s request and adjourned the trial.

  11. [9] The trial resumed on 3 November 2010 and took place over seven days spanning the period of 3 November 2010 to 22 November 2010 (“the second tranche of the trial”). On the same day, the Judge convicted the Appellant of all five charges that had been proceeded with. The Prosecution then withdrew the remaining four charges pursuant to s 177 of the previous Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC (Cap 68)”) and the Appellant was granted a discharge not amounting to an acquittal on those charges.

  12. [10] On 23 November 2010, the Appellant was sentenced as follows:

  13. [11] The Judge ordered the imprisonment terms for the s 377 charge and two of the s 376(2) charges to run consecutively with effect from the date of the arrest, ie, 30 April 2009, with the other two imprisonment terms to run concurrently with them. The total imprisonment term was therefore 29 years. The Appellant was given the maximum of 24 strokes of the cane. The grounds for the Judge’s decision, which were released on 21 December 2010, are to be found in Public Prosecutor v AOF [2010] SGHC 366 (“the GD”).

  14. Facts

  15. Background

  16. [12] Given the crucial importance of the facts, a detailed recitation of the factual background is necessary.

  17. The relevant parties

  18. [13] The Appellant was born in November 1975. He is now 37 years old. Prior to his arrest, he was residing in the flat with the wife and three children. He married the wife in 1992. Their three children comprise two daughters and a son. The eldest child, C1, is the complainant in the present charges against the Appellant. She was born in March 1993 and is now 19 years-old. The second daughter (“C2”) was born in 1997 and is now 15 years-old. The son (“C3”) was born in 2001 and is now 11 years-old. The marriage appears to have been an unhappy one with the mother having made at least one police report concerning an alleged assault by the Appellant. On that occasion, the Appellant was warned by the investigation officer (“IO”) that his wife could have obtained a Personal Protection Order as a result. By the Appellant’s own admission, he continued to assault his wife even after this police report was made (see below at [30] and [227]).

  19. [14] In February 2010, the Appellant divorced his wife by consent in the Syariah Court through matrimonial proceedings commenced by her. The Appellant was in custody in respect of the present case at that particular point in time.

  20. [15] Shortly after, on 12 July 2010, the mother and Lathiff travelled to Batam together with the mother’s brother where the couple apparently married. Coincidentally, Lathiff, was the Duty Investigation Officer (“DIO”) who attended to the mother and C1 at Ang Mo Kio Police Division when they reported the alleged rapes by the Appellant on 29 April 2009.

  21. The Prosecution’s case at the trial below

  22. [16] The Judge has set out comprehensively the Prosecution’s case in the GD (at [7]–[42]). We therefore set out a summarised version as follows.

  23. C1’s testimony at the first tranche of the trial

  24. The first charge

  25. [17] C1 told the court that the Appellant started engaging in sexual acts with her in 1999 when she was 6 years-old and still in kindergarten. The first alleged incident occurred at around midnight in the living room of the flat when C2 was asleep in the bedroom and the mother was on night shift work. C3 was not yet born. C1 was sleeping with C2 in the bedroom when the Appellant came to wake her up. The Appellant then pulled her up and she followed him to the living room. He told her to sit next to him on the mattress in the living room. C1 was in her pyjama dress. The Appellant lay down on the mattress, wearing only his shorts. The television was on but the house lights were off. A while later, the Appellant pulled down his shorts and told C1 to hold his penis. When she did so, the penis was erect. He then asked her to suck his penis. She complied for a few minutes and noticed “white liquid” coming out from the penis.

  26. [18] C1 did not tell anyone, including her mother, about the incident as she did not know at the time that what had happened was wrong and how to tell her mother or anyone about it.

  27. The second charge

  28. [19] One night, sometime after C1’s tenth birthday, between March 2003 and June 2003, the Appellant asked her to follow him to watch television in the living room. C1 was watching television in the bedroom at the time and both her siblings were asleep. The mother was not at home as she was on night shift work.

  29. [20] When C1 went out to the living room, the television screen was showing a naked man on top of a naked woman. C1 did not understand what they were doing. She sat down next to the Appellant while he lay on the mattress, wearing only shorts. C1 was in her pyjama dress. The Appellant then exposed his penis and told her to hold it. As she did so, she felt the Appellant insert his finger into her vagina. She felt pain and tried to push his hand away. He then told her to suck his penis and she complied. After a while, he made her lie down on the mattress and removed her panties. He then held her legs apart and inserted his penis into her vagina. She felt him moving back and forth. She felt a lot of pain and tried to push him away but he was too strong. After he ejaculated on her stomach, he told her to wash up and go to sleep. She followed all the instructions given as she was afraid of the Appellant.

  30. The third charge

  31. [21] During the school holidays in June 2003, much the same things happened in the living room as in the second charge. C2 and C3 were sleeping in the bedroom and the mother was working the night shift. In the living room, the Appellant got C1 to hold his penis while he inserted his finger into C1’s vagina. He then asked her to suck his penis before inserting his penis into her vagina. C1 tried to resist by pushing him away but he was too strong. He then ejaculated on her stomach and told her to wash up and go to sleep.

  32. The day incident

  33. [22] C1 also testified about another incident that took place in the flat in 2004 (which was not, however, the subject of any charge). She claimed that one day when she and C2 were in the bedroom, the Appellant went in and asked C2 to go out as he wanted to help massage C1’s back. After C2 left the bedroom, the Appellant closed the room door and latched it. He then asked C1 to perform fellatio on him. She recalled this incident as it happened a few months after her puberty and she was having cramps at that time.

  34. The fourth charge

  35. [23] After her eleventh birthday in March 2004, the Appellant raped C1 twice that year. She reached puberty around May that year. Consequently, one incident of rape took place before her puberty, which was the subject of the fourth charge, and the other occurred after her puberty, this was the subject of one of the charges that was stood down by the Prosecution and eventually withdrawn at the end of the trial. Both rapes happened in much the same sequence as the earlier ones described above at [19]–[21].

  36. [24] In 2004, C1 attended sex education classes at school. She claimed that it was then that she had realized that what had happened between her and the Appellant was wrong. She contemplated telling the mother about what the Appellant had done but decided against it as she did not want the mother to be unhappy. This was because she was afraid that the mother would confront the Appellant and that he would beat the mother up, as he had done on other occasions when they quarrelled. C1 also did not know how to explain to the mother about the incidents. She also did not tell her teachers or her classmates as she did not know how to do so and was afraid that they would not believe her.

  37. Events in 2006

  38. [25] In 2006, when C1 was in secondary one, the Appellant raped her again. In April 2006, she ran away from home. During the three days away from home before the mother found her, she stayed with her friend’s god-sister. She had hoped that her running away from home would show the Appellant that she did not want to continue having sex with him. However, she kept this reason to herself. As a result of this incident, the Appellant punished C1 by having her “grounded” and did not permit her to go to school for some time.

  39. [26] C1 also tried to avoid further sexual incidents with the Appellant after the last rape which occurred in 2006. She would return to the flat after school only if the mother was at home. Otherwise, she would go to the Ang Mo Kio library and remain there until 8pm to 10pm. When she went to bed, she would lie next to C2 so that, if the Appellant attempted to pull her away, she would hug C2 and cause her to wake up.

  40. [27] C1 affirmed unequivocally that she did not have sex with any other person besides the Appellant. This is an issue that goes to her credibility that we will address below (see Issue 1 below, at [111]–[172]).

  41. C1’s diary

  42. [28] C1 claimed that she used to keep two diaries while she was in primary school. The yellow one was for her general matters while the purple one, bought when she was in primary four or five, was to record the sexual abuse by the Appellant up to 2006. She recorded the dates of the incidents, what happened on those days and her feelings about them and would refer to the diary two or three times every fortnight. Both diaries were supposedly lost while she was in secondary two or three, allegedly thrown away with other books by the mother during spring cleaning of the flat.

  43. C1’s disclosure of the sexual assaults to C2

  44. [29] C1 further testified that she had told C2 about the sexual abuse while they were staying with their grandmother during the school holidays sometime in 2007 or 2008. One night, she asked C2 whether she knew the meaning of “sex”. C2 said that it meant the penis was inside the vagina. C1 then asked her whether she believed that “daddy” had done that to her. C2 appeared shocked and was a little incredulous at first. She asked C1 why she had not informed “mummy” about it. C1 replied that it was not the right time to tell her yet as their parents were quarrelling and she did not want to add to the mother’s problems. C2 asked her whether she would like her to help in telling the mother but C1 said that she would tell the mother when it was time to do so.

  45. The fifth charge

  46. [30] The fifth charge, along with the arrest of the Appellant, came about in the following manner. A few days before 29 April 2009, the mother and the three children moved out of the flat after the mother and the Appellant had quarrelled over their finances. They went to stay with the children’s maternal grandmother in Yishun. Moving out with the mother after their parents had quarrelled was not something new to the children. In fact, the mother and the Appellant quarrelled frequently over money and the Appellant’s alleged extra-marital affairs with various “Indonesian ladies”. These quarrels would often turn violent with the mother having to make a police report more than two to three years ago. On that occasion, the Appellant was warned by the IO that his wife could have obtained a Personal Protection Order as a result. These bouts of violence went on even after the police report.

  47. [31] Sometime after 2pm on 29 April 2009, C1 returned to the flat alone to collect some items which she needed for school. According to C1, the Appellant later returned to the flat and, noticing that C1 was in the bedroom, went in to talk to her and sat a few feet away from her. He grabbed her right wrist with his left hand and tried to undo the first button (the one just below the collar button) of her school blouse. During the struggle, C1 managed to use her mobile phone to call the mother to inform her that she was leaving the flat to meet the mother at Ang Mo Kio Central for shopping as had been arranged. The mother recalled that C1 was speaking in a trembling voice and had sounded sad. As a result of this call, the Appellant stopped his actions. C1 then left the flat quickly and went to meet the mother.

  48. [32] When they met, the mother noticed that C1 looked like she had been crying although she had earlier sounded delighted to go shopping. C1 burst out in tears when C3 asked her why she was crying. She managed to utter only the words, “daddy, daddy” when the mother asked why she was crying. The mother then asked her whether the Appellant had scolded her or had beaten her up. She told the mother in Malay that the Appellant “wanted to do it again”. When the mother asked her to elaborate, she used the Malay word “main” (meaning “play”) to explain that he had wanted sex. The mother asked her whether the Appellant had put his penis into her vagina and she confirmed that he did. The mother then asked her to swear upon God that what she was telling her was true. When C1 did so, the mother brought her to Ang Mo Kio South Neighbourhood Police Centre (“the NPC”) in a taxi. In the taxi, the mother asked C1 to re-affirm that everything she said was the truth and C1 did so. According to the mother’s testimony, she asked C1 whether it was “sedap” (or nice) and C1 replied that it was not. She asked this question to determine whether C1 was a willing participant in the sex acts.

  49. [33] At the NPC, they approached a female officer who observed that C1 was crying. The female officer tried to calm her down. C1 informed the female officer that she had been raped by her father and wanted to lodge a police report. The female officer then telephoned Senior Staff Sergeant Lathiff, who was the DIO of Ang Mo Kio Police Division that evening. Lathiff instructed the female officer to lodge a police report for C1 and to ask the mother and C1 to go to the Ang Mo Kio Police Divisional Headquarters (“the DHQ”) to meet him. Before leaving for the DHQ, a male police officer at the NPC typed out C1’s First Information Report (“FIR”) which C1 signed. The section, entitled “Brief details” in the FIR, reads as follows:

  50. [34] Under the heading, “Date/Time of Incident”, it was stated, “12/07/2006 23:55 – 12/07/2006 23:55”. The date and time of the said report were stated as “29/04/2009 16:48”.

  51. [35] At the DHQ, Lathiff interviewed C1 and her mother separately and recorded their contents in his investigation diary. Later that evening, Station Inspector Chandra Seakeran (“SI Chandra”) of the Serious Sexual Crimes Branch (“SSCB”) arrived and interviewed C1. The next day, the police arrested the Appellant at the flat. He has been in custody since.

  52. C1’s testimony at the second tranche of the trial

  53. [36] C1 was one of four Prosecution witnesses recalled for cross-examination. C1 agreed that she was not angry with the Appellant for quarrelling with the mother over money matters but was angry over the Appellant’s alleged extra-marital affairs. C1 agreed that while she had three boyfriends since secondary one, she did not have had sexual intercourse with any of these boys.

  54. [37] The Appellant’s defence counsel (“defence counsel”) suggested to C1 that her allegations about the incidents of sex were all false. In particular, defence counsel suggested to C1 that she was fabricating the allegations against the Appellant in order to send him to prison, as he was a strict father, had treated C2 better than she, had extra-marital affairs and had beat up the mother. C1 denied that she was lying about the sexual assaults and disagreed with the suggestions made by defence counsel.

  55. [38] However, C1 conceded under cross examination that she had lied to the mother on two occasions. On the first occasion, when she ran away from home in 2006 and was located by the mother subsequently, C1 lied that she had been staying outdoors when she was actually in a friend’s home. C1 explained that she did not want to get the friends who sheltered her into trouble as the mother had made a police report about her disappearance. On the second occasion, when the mother told her to return home and not stay in the library, she lied that she had to look for materials there. C1 explained that she did not want to return to the flat earlier as she was afraid of being alone with the Appellant.

  56. [39] In respect of her relationship with Lathiff, C1 denied having addressed him as “Baba” or father in Malay. She said that Lathiff had only advised her about school work and her future.

  57. C1’s HSA statement

  58. [40] In re-examination, the Prosecution brought to the attention of the court the statement C1 had given to Health Sciences Authority (“HSA”) officers (“the HSA statement”) regarding a separate, ongoing police investigation into the mother’s and Lathiff’s alleged involvement in the theft of cough syrup from the clinic where the mother used to work as a nurse (“the theft of cough syrup investigation”). It should be noted that Lathiff is the same person who was the DIO in C1’s rape investigation. Of relevance is the fact that this statement was recorded on 22 September 2010, between the first tranche and the second tranche of the Appellant’s trial. It was commendably brought to the court’s attention during the Prosecution’s re-examination of C1 when she was recalled as a witness on 15 November 2010. When questioned by the Prosecution, C1 denied giving the answers recorded in the HSA statement. In contradiction to what the HSA statement recorded, she denied telling the HSA officers that she believed that the mother had married Lathiff in Batam and that, at first, she called the mother’s new husband “uncle” but subsequently called him “Baba”. The HSA statement also recorded C1 as stating that the mother had known Lathiff since June 2009, this was shortly after he had been the (initial) investigating officer looking into C1’s police report. She maintained her position that she did not say those things about the mother and Lathiff despite being repeatedly warned by the Prosecution and the Judge about the consequences of giving false testimony.

  59. [41] C1 claimed that she was working as an event coordinator for a fast food outlet and was in the midst of a client’s birthday party at the client’s home when some HSA officers telephoned her and requested to meet her for five minutes. She agreed and went down to the ground floor of the block of flats where she had hurriedly answered some questions and then signed a statement after it was read to her as she had to rush back to the party. She signed that statement (viz, the HSA statement) as the HSA officers had told her that the HSA statement could be of assistance to the mother. She adamantly maintained in court that the contents of the statement were untrue and that she had merely called Lathiff “uncle” and not “Baba”.

  60. [42] Both defence counsel and the Prosecution agreed initially that the HSA officers who recorded C1’s statement be called to testify. However, the next day, the Prosecution informed the court that it was not calling the officers but would take the position that the HSA statement was indeed made by C1. The Prosecution did not wish to have the whole statement admitted in evidence as it was the subject of ongoing investigations. On that basis, defence counsel accepted the Prosecution’s position and agreed to confine their questioning to the portion of the HSA statement already on the record. Nonetheless, the Prosecution’s submission was that whether C1 had addressed Lathiff as “Baba” “is clearly a collateral matter, a matter that is not central to the issue before the Court.” Defence counsel disagreed and submitted that it was relevant to discredit C1’s testimony and demonstrate whether there had been any form of collusion among Lathiff, C1 and the mother. When C1 returned to the witness stand, she explained that she was sad and concerned that the investigators were alleging that her mother was involved in the alleged theft of cough syrup. She maintained that she had called Lathiff “uncle” and not “Baba” and that she did not know whether calling him “Baba” would be damaging to her mother’s case or not. She also maintained that she had no reason to fabricate the charges of rape and sexual abuse by the Appellant and that she had not discussed the case with Lathiff.

  61. The medical reports

  62. [43] On 5 May 2009, the Appellant was examined by a doctor from Changi General Hospital and found not to have been suffering from erectile dysfunction. On 18 and 25 May 2009, the Appellant was examined by Dr Seng Kok Han, a psychiatrist from the Institute of Mental Health, and was found to have had no mental illness. The Appellant informed the psychiatrist that he had never had sexual intercourse or any other sexual activity with C1. He also told the psychiatrist that, although he was not close to C1, they did not have major conflicts and he did not know why C1 had accused him of rape. During the second session with the psychiatrist, the Appellant was tearful when he said that he might plead guilty in order not to get C1 into trouble.

  63. [44] On 3 June 2009, C1 was examined by Dr Cindy Pang (“Dr Pang”) of the Department of Obstetrics and Gynaecology, Singapore General Hospital. C1 informed Dr Pang that she had her menarche at age 11 and provided a general history of the alleged sexual acts between the Appellant and her. Dr Pang noted that C1’s hymen “... was deficient posteriorly, with old tears at the 2 and 9 o’clock position, suggestive of previous penetration.” Dr Pang explained that when she interviewed C1, she had focused on the history pertaining to penetration and not on non-penetrative episodes. She opined that it was unlikely that the tears were caused by sports or dancing and that they could not have occurred unless there had been penetration by some object. In her view, a posteriorly deficient hymen was not more susceptible to tears compared to a normal one.

  64. [45] C1 was examined by Dr Lim Choon Guan (“Dr Lim”), a psychiatrist in the Department of Child and Adolescent Psychiatry, Institute of Mental Health, on 5 June 2009. C1 gave Dr Lim a general history of the sexual acts allegedly committed by the Appellant on her. Dr Lim noted that C1 was able to give a clear and detailed account of the alleged events. He also noted that she would become teary-eyed at times but was still able to hold her composure, that her mood was not depressed and that her thoughts were coherent and logical. C1 was assessed to be in the average range of intellectual functioning. The psychiatrist opined that C1 was not suffering from any major mental illness and did not exhibit any symptom of post-traumatic stress disorder, was fit to testify in court, and was aware of the nature and quality of the acts she had alleged against the Appellant. Dr Lim also interviewed the mother on the same day. He recorded that she had declined the institute’s request to obtain a report on C1 from her school. C1 was referred for counselling with the Child Guidance Clinic’s medical social worker but did not turn up for the appointment on 25 June 2009. When cross-examined, C1 claimed that her mother did not inform her about this further appointment. When further questioned on why her mother did not accede to Dr Lim’s request for C1’s school report, C1 agreed with defence counsel’s suggestion that the report would perhaps expose her disciplinary problems at school. However, when it was put to her later in cross-examination, C1 denied having discipline problems before and after April 2009.

  65. The mother’s testimony

  66. [46] In respect of her divorce from the Appellant, the mother testified that she had commenced proceedings in the Syariah Court because she could not tolerate the abuse by the Appellant and his financial irresponsibility towards their family, and also because of the allegations that he had raped their daughter. However, she agreed that the divorce was granted without the court requiring her to prove her allegations and that the Appellant had merely pronounced the “talak” in order to effect the divorce.

  67. [48] The mother was cross-examined about her relationship with Lathiff, a married man. She was asked whether she had asked the Appellant’s sister and her husband to arrange a secret marriage for her and Lathiff in Batam. The mother claimed that she became friends with Lathiff only some two months after C1’s police report was made. Lathiff called to ask how she was coping and had asked her out for a drink. She admitted that she had invited Lathiff to the flat and that he had driven her to Ang Mo Kio Central in a police patrol car before. Lathiff merely advised her children to be obedient and to study hard. He did not try to coach C1 or C2 concerning their testimony in court. She denied being in a romantic relationship. She stated that she told the Appellant’s sister to arrange the secret marriage in Batam merely to anger and hurt the Appellant’s family by letting them know that she was marrying someone better than the Appellant. The mother categorically denied that a marriage had been entered into between her and Lathiff. In July 2010, she did go on a one-day shopping trip to Batam with her brother and Lathiff. Lathiff’s wife was supposed to join them but could not because of work commitments.

  68. Lathiff’s testimony

  69. [49] Lathiff, who had been transferred to other duties because of the theft of cough syrup investigation, testified that after he had met C1 and the mother on 29 April 2009, he interviewed C1 for about an hour and spoke to the mother separately. His role was to ascertain whether the allegations of rape were made out or not. C1 was crying and could hardly speak. After she had calmed down, she narrated her story to Lathiff who then informed the SSCB. When the officers from the SSCB arrived later that evening, they took over the investigations and Lathiff was not involved in the case from then on. It was only some two months later that he had decided to call the mother to befriend her. He claimed that they did not know each other before 29 April 2009. He agreed that he had been to the flat but the children were home on those occasions. He merely counselled them and told them to be obedient. His contact with the mother and the children was on a personal basis and had nothing to do with the investigations in this case. He could not recall whether he had given the mother a lift in a police patrol car. On one such visit to the flat, he had met the Appellant’s sister and her husband. The mother told Lathiff that she had informed the Appellant’s sister and her husband about their supposed wedding as a ploy to hurt the Appellant’s family. He too denied that a marriage had been entered into between him and the mother.

  70. C2’s testimony

  71. [50] C2’s testimony covered three separate episodes which are summarised as follows:

  72. (a) The first episode (“the first episode”) was in 2006 when C2 was about 9 years old. The Appellant went into the bedroom and told her and C3 to go outside. C1 was asleep and the mother was not home. C2 was told to close the bedroom door. C2 did so but felt uneasy. She waited in the living room and did not dare to open the bedroom door as she was afraid of the Appellant. He emerged from the bedroom about half an hour later. When C2 entered the bedroom, C1 was seated on the bed watching television. Sometime after that day, C2 asked C1 what was going on in the room that day but received no answer from her.

  73. (b) The second episode (“the second episode”) happened at night in 2006, when the three children were sleeping in the bedroom. C2 was awakened by some movement on the bed. She saw the Appellant on top of C1. C2 turned away towards C3 as she was afraid of the Appellant. He was not wearing any shirt but C2 could not see if his shorts were on. The mother was out working that night. Subsequently, the Appellant left the bedroom. C2 did not ask C1, nor did she tell anyone about this incident.

  74. (c) The third episode (“the third episode”) happened one afternoon in 2008. C1 told C2 that, with regard to the first episode when C2 was asked to leave the bedroom, the Appellant had touched C1’s vagina and her body. C2 was shocked to hear this. Both of them cried. C2 told C1 she hated the Appellant for this and would treat him as an uncle and not as their father. C1 told her that the mother did not know about all this and that she would tell her when the time was right. It was C2’s testimony that this took place at their home.

  75. The Appellant’s case at the trial below

  76. The Appellant’s version of events at the trial below

  77. [51] The Appellant’s defence to the charges consisted in a complete denial that any sexual contact had taken place.

  78. [52] When asked by the Prosecution why he had not challenged C1’s allegations during the first tranche of the trial despite the court’s guidance, he said that he did not know how to challenge her evidence. He explained that when he told the psychiatrist that he might plead guilty in order not to get C1 into trouble (see above at [43]), he meant that his daughter had made a false report against him and he might choose to admit guilt rather than have her prosecuted for making a false report. He was “willing to take over her punishment”. It was not an expression of remorse over what he had allegedly done to her. He was sad when he heard C1’s testimony in court, wondering why she was making such allegations and who might be behind them.

  79. [53] The Appellant, through defence counsel, also alleged that the mother and Lathiff were in a romantic relationship and that they had colluded to bring false allegations against him. To support this argument, he referred to the testimony of his sister, his sister’s husband and his father.

  80. The sister’s testimony

  81. [54] In her examination-in-chief, the Appellant’s sister (“the sister”) testified that the mother previously had a “close” relationship with her and considered the mother her “own sister”. The sister used to send her children to the mother’s flat from 2006 to May 2010. This stopped soon after the sister realised that the general atmosphere in the flat had changed. From April to June 2009, the sister had been told that the Appellant was out working whenever she sent her children to the mother’s flat for babysitting on the weekends. The mother finally told the sister about the rape charges sometime in June 2009. The sister stated that the mother apologised to her and had used the Malay word “rogol” (which means rape in English). The mother also told the sister that she did not know how to express it to the Appellant’s parents as she was afraid.

  82. [55] On 27 June 2009, the sister, the Appellant’s brother and parents (along with C1, C2, C3 and the mother) met at the Appellant’s parents’ flat (“the 27 June 2009 meeting”). The children were sent to a room while the meeting was held in the living room. The sister heard the mother say to the Appellant’s parents that if the Appellant was willing to divorce her, she would withdraw the case.

  83. [56] In a separate incident in October 2009, the mother told the sister that she had first met Lathiff when she reported the loss of her Identity Card (“IC”) to the police. When asked when this took place, the sister replied that the mother “did not say”. The mother also shared that Lathiff was a married man who lived with his four children and wife. The mother asked the sister for her advice on whether she should become Lathiff’s second wife and asked if the sister’s husband could speak to Lathiff about the prospect of the mother and him getting married in Batam. Shortly after, the sister’s husband made arrangements for the marriage in Batam to take place on 25 December 2009. Subsequently, though, the mother telephoned the sister to inform her that the marriage was cancelled because Lathiff and the mother had a “misunderstanding.”

  84. [57] In March 2010, the sister and her husband met Lathiff, for the first and only time at the mother’s flat. C1 and C3 were also present. As Lathiff, the mother, the sister and her husband were all leaving the flat at the same time, the sister and her husband offered the mother a lift in their car. The mother declined, saying that Lathiff had brought his police car. The sister later saw the mother being driven by Lathiff in his police car. The sister testified that the mother, C1, C2 and C3 had a close relationship with Latiff. They conversed over the telephone and C1 would sometimes ask Lathiff to buy chocolate while C2 would ask for ice-cream. C2 and C3 addressed Lathiff as Baba. The sister knew that the Appellant’s children spoke to Lathiff over the phone because she had overheard one such telephone conversation while she was staying over at the flat.

  85. [58] Sometime in May 2010, the mother informed the sister that Lathiff and she had gone through with the Batam marriage on 3 May 2010 with the help of the mother’s brother. The sister asked the mother whether she had obtained the consent of Lathiff’s first wife. The mother said that the first wife had not given her consent. The sister was shown the wedding ring, photograph and marriage certificate which had been issued in Batam. The mother also told the sister that she had received her divorce certificate in March 2010.

  86. [59] The Prosecution began its cross-examination by expressly stating that it was not accepting these aspects of the sister’s testimony:

  87. [60] Nonetheless, the Prosecution failed to specifically challenge the precise allegations in the sister’s evidence on her observations of the interactions between the mother, her children and Lathiff. At this juncture, we pause to note parenthetically that the sister clarified during cross-examination that at no time did C1 or the mother state that the allegations against the Appellant were false.

  88. [61] The Judge, however, did not adequately evaluate this evidence contextually (see below at [81]). Pertinently, the further evidence that has surfaced in the course of this appeal confirms the accuracy of the sister’s testimony on some of these points.

  89. The sister’s husband’s testimony

  90. [62] The sister’s husband’s testimony was that Lathiff and the mother had an established romantic relationship. Sometime at the end of 2009, the sister told him that the mother had wanted him to make preparations for her marriage to Lathiff in Batam. He had agreed to do so and contacted his friends to make the necessary preparations. Some months later, Lathiff and the mother told him that they were not able to perform the marriage there. A few months later, he heard from his wife that Lathiff and the mother had been married in Batam.

  91. [63] In relation to the March 2010 meeting at the mother’s flat (see above at [57]), he observed that “... Lathiff was sort of a strong person, influential, and [C1] was afraid of him. And he appeared to be very instructive [to C1]”. He also mentioned that Lathiff had referred to himself as Baba to the children. He corroborated the sister’s account that he had, together with the sister, seen Lathiff ferry the mother in his police car.

  92. [64] He had asked for permission from the mother to speak to C1 about the allegation against the Appellant but the mother had refused to allow him to talk to C1. Upon cross-examination, the sister’s husband clarified that the mother and C1 had never said that the police report was false.

  93. The Appellant’s father’s testimony

  94. [65] The Appellant’s final witness was his father. The Appellant’s father claimed that he first came to know about the allegations of rape during the 27 June 2009 meeting at his flat (see above at [55]). At the meeting, the mother wanted to tell those present why the Appellant had been arrested. The Appellant’s father was not allowed to ask her questions but was only permitted to listen to what she had to say. The mother said that her elder brother had taken both the mother and C1 to make the police report. The mother had a copy of the Appellant’s birth certificate and, with that, she had access to the Appellant in prison. The mother also stated that, if the Appellant divorced her, she would withdraw all the charges against him. The Appellant’s father asked the mother whether it was true that the Appellant had raped C1. The mother kept silent and told the Appellant’s father that he could not ask C1 about this because “[b]eing the mother, she knew what it’s all about.”

  95. [66] The Appellant’s father testified that, he found the mother to be “very aggressive” against and “cruel” to the Appellant during their marriage. The mother would come to see the Appellant’s father every month for financial help as the Appellant was unemployed. The Appellant’s mother would give between $30 and $50 whereas the Appellant’s father would not give her any money as he was not on good terms with the mother and did not like to see her.

  96. [67] The Appellant’s father also testified that even before the Appellant’s arrest, he would only be able to talk to C1 for about 10 minutes before the mother would take her away.

  97. [68] During cross-examination, the Appellant’s father stated that the mother had told him during the 27 June 2009 meeting that she wanted to send the Appellant to prison. The Prosecution noted that the Appellant’s father did not mention this during his examination in-chief and neither had the mother claimed to have made such a statement. Nevertheless, the Appellant’s father conceded that the mother or C1 did not at any time say that the police report was false.

  98. The decision below

  99. [69] The Judge’s detailed reasons are set out in his GD (at [60]–[73]). To begin with, the Judge was mindful that the allegations in this case were based solely on the testimony of the Appellant. He observed (see the GD at [60]) that:

  100. C1’s testimony

  101. [70] The Judge then proceeded to give his evaluation of the demeanour and testimony of C1 (see the GD at [62]–[64]). In particular, he noted (see the GD at [62]) that:

  102. The Judge went on to state (see the GD at [64]) that C1’s account of the events on 29 April 2009:

  103. [71] However, the Judge identified two concerns regarding C1’s testimony. The first related to the two diaries that C1 alleged she kept but were somehow lost around 2007 or 2008 (see above at [28]). Defence counsel argued that these diaries did not exist because the mother could not have discarded them without so much as browsing through them. The Judge did not think C1 was lying about the loss of the diaries and suggested that perhaps the mother was careless in disposing of them without much thought. However, as both diaries were missing, the Judge did not place any weight on C1’s evidence that the alleged sexual assaults were detailed by her in one of them (see the GD at [69]).

  104. [72] The second and much more important concern related to the HSA statement regarding the ongoing police investigation into the mother’s and Lathiff’s involvement in the theft of cough syrup investigation (see above at [40]–[42]). The Judge’s findings on this issue (see the GD at [70]–[72]) are highly pertinent to our later discussion on the possibility of collusion as well as C1’s credibility and we therefore reproduce it, as follows:

  105. Collusion

  106. [73] The Judge also proffered a number of reasons for rejecting the case by the defence that C1 had colluded with her mother, and possibly Lathiff, to bring a false complaint against the Appellant.

  107. [74] First, it was not as if C1 had returned to the flat on 29 April 2009 in order to set a trap for the Appellant. After all, as the Appellant testified, C1 was also back at the flat on the two days immediately before that date and nothing happened (see the GD at [64]).

  108. [75] Secondly, C1’s genuine distress after the confrontation with the Appellant in the flat was also noted by the police officers who saw her that day (see the GD at [64]).

  109. [76] Thirdly, although the prosecution accepted that C1 did refer to Lathiff in more recent times as “Baba”, her “extreme reluctance” to acknowledge this at trial could be explained by the fact that “if her mother were to get into any trouble with the law [over the HSA investigation], she and her siblings would be left to fend for themselves” (see the GD at [71]).

  110. [77] Fourthly, even if the mother and Lathiff were not completely upfront about their relationship, the Judge accepted that any relationship between them developed only a couple of months or so after the police report had been made by C1 (see the GD at [72]).

  111. [78] Fifthly, the Judge did not detect any hint that Lathiff, despite being the apparent father figure to the Appellant’s children, had sought in any way to influence C1 or C2 in their testimony in court (see the GD at [72]).

  112. The Appellant’s cross-examination of C1

  113. [79] The Judge appeared to place considerable weight on the fact that the Appellant, who at the time was appearing in-person, was unable to put any questions to C1 about the alleged sexual assaults. The Judge observed (at [65]) that:

  114. [80] Accordingly, the Judge agreed with the Prosecution that the Appellant’s subsequent evidence, which emerged after he was represented by counsel, about all the possible reasons why C1 could be fabricating evidence against him “invited scepticism” (see the GD at [65]).

  115. [81] It should be noted that the Judge did not make any reference to, or findings on, the veracity of the Appellant’s testimony or the witnesses that were called by the defence.

  116. Corroborative evidence

  117. [82] The Judge also found that there were two pieces of corroborative evidence.

  118. [83] The first was C2’s testimony that C1 had confided in C2 about the sexual assaults by the Appellant. At [67] of the GD, the Judge noted that:

  119. [84] The second was the medical evidence. At [68] of the GD, the Judge noted as follows:

  120. Sentence

  121. [85] On these grounds, the Judge found the Appellant guilty of the five proceeded charges and sentenced the Appellant to 29 years’ imprisonment and to a maximum of 24 strokes of the cane (see above at [10]–[11]).

  122. The appeal

  123. [86] The Appellant in his Notice of Appeal dated 2 December 2010 stated that he wished to appeal against his sentence and conviction. On 8 February 2011, the Appellant confirmed that he would not be engaging counsel to act for his appeal. Soon after, on 2 March 2011, the Appellant’s filed his Petition of Appeal, which at paragraph 2 and 3 states as follows:

  124. The first Court of Appeal hearing (“the first CA hearing”) on 29 July 2011

  125. [87] Two preliminary issues took centre stage at the first hearing before this court on 29 July 2011.

  126. [88] First, was the issue of whether the Appellant was appealing against only his sentence or his conviction as well. This confusion arose from the different grounds of appeal stated in the Appellant’s Notice of Appeal and subsequent Petition of Appeal (see above at [86]). Clarifications were thus sought from the Appellant who confirmed at the hearing that he wished to appeal against his sentence and conviction. The Prosecution did not object. Accordingly, the appeal proceeded on that basis.

  127. [89] Secondly, there were a number of issues which arose from a perusal of the Official Transcript and exhibits in the proceedings in the court below which we felt the Prosecution ought to address this court on. Accordingly, we ordered that the appeal be adjourned for:

  128. (a) Pro bono counsel to be appointed to assist the Appellant; and

  129. (b) The Prosecution to reply to this court’s request for further information (“the CA’s first round of requests”) on:

  130. (i) The mother’s, Lathiff’s and C1’s phone records in order to verify their testimony on when the couple first met and the sequence of events on 29 April 2009 (“the phone records”);

  131. (ii) The police report that the mother allegedly lodged for the loss of her IC in order to verify the sister’s testimony that Lathiff and the mother had met on that occasion (“the loss of IC police report”);

  132. (iii) The relevant pages of Lathiff and the mother’s passports for all travels they undertook in 2009 and 2010 to determine whether the couple had indeed travelled to Batam together and if they had undertaken other travels together prior to 29 April 2009 (“the passport pages”);

  133. (iv) C1’s school report to determine the extent of C1’s “disciplinary problems” that caused the mother to decline Dr Lim’s request for the said report (“C1’s school report”); and

  134. (v) C1’s full HSA statement to ascertain the context of the answers which C1 had later disavowed at trial and whether the statement contained further relevant information (“C1’s HSA statement”).

  135. We also ordered that a pre-trial conference (“PTC”) be held in a month’s time, for the purpose of allowing the court to receive updates on the CA’s first round of requests.

  136. The events between the first and second CA hearing

  137. The first PTC

  138. [90] On 23 August 2011, the Prosecution furnished the following information to this court:

  139. (a) The ICA travel records of Lathiff, the mother and her brother;

  140. (b) C1’s school report; and

  141. (c) C1’s full statement in relation to the HSA investigation (“C1’s HSA statement”).

  142. [91] The Prosecution also informed this court that the mother had not lodged a police report for the loss of her IC and it would need more time for the service providers to furnish the phone records.

  143. [92] The ICA travel records revealed that Lathiff and the mother had made six overseas trips together in 2010. On one of these occasions, they were also accompanied by the mother’s brother.

  144. [93] However, the production of the ICA records was not in strict compliance with our request for all the relevant pages in Lathiff and the mother’s passports for all travels they undertook in 2009 and 2010 (see above at [89(b)(iii)]). This was not an insignificant difference since the ICA travel records only highlighted the fact that the couple had gone on joint overseas trips without stating the precise destinations where they had travelled to.

  145. [94] C1’s school report dated 17 August 2011 raised serious concerns about the credibility of her trial testimony. The school report was authored by the school’s counsellor and discipline co-ordinator (“the school counsellor”). In the report, the school counsellor noted that C1 was always “a very quiet and well-behaved girl” who “adhered to school rules and did the her [sic] school work.” However, the school counsellor went on to state that:

  146. [95] Accordingly, the school report raised even more questions. Firstly, it did not state exactly when these “sexual endeavours” took place, although one can only infer that they must have happened sometime between January 2005 and October 2009, when C1 was in secondary school.

  147. [96] Additionally, the school report did not detail the precise nature of the “adult acts” or “sexual endeavours” that C1 had engaged in. This is significant in light C1’s evidence that she never had voluntary sexual intercourse.

  148. [97] The final item that was disclosed by Prosecution at the first PTC was C1’s HSA statement. In addition to the fragments of the HSA statement that could be read off the Official Transcript (see above at [40]), the full statement also revealed that the mother had told C1 sometime in April 2010 that if the mother was ever caught for stealing cough syrup, Baba (Lathiff) would not admit to being the mastermind. The mother was also afraid to stop stealing because she was afraid that Baba would scold her.

  149. The CA’s second round of requests from the Prosecution

  150. [98] In light of these new facts emerging, the Prosecution was directed by this court (on 25 August 2011) to provide details with regard to:

  151. (a) The travel destinations of Lathiff, the mother and her brother for the six overlapping travel dates; and

  152. (b) The precise nature of the “sexual endeavours” and “adult acts” disclosed in the school report.

  153. [99] The Prosecution were also invited to produce:

  154. (a) All the statements made by C1, the mother and Lathiff to the police; and

  155. (b) All the statements made by the Appellant to the police.

  156. The Prosecution’s reply

  157. [100] By a letter dated 31 August 2011, the Prosecution updated this court, as follows:

  158. (a) It would obtain the relevant travel records;

  159. (b) The information as to the “adults acts” “is not available from those who prepared the report”;

  160. (c) C1, the mother and Lathiff’s statements recorded by the police and HSA in relation to the theft of cough syrup investigation would be disclosed to Appellant’s counsel under the rules for disclosure set out in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Muhammad bin Kadar”);

  161. (d) The statements made by C1, the mother and Lathiff to the police in relation to the rape investigation could not be disclosed without a prior request from Appellant’s counsel under section 122(2) of the CPC (Cap 68). Furthermore, the Prosecution were not obliged to disclose these statements according to the Muhammad bin Kadar rules of disclosure;

  162. (e) Barring any objections from the Appellant, the Appellant’s police statements would be made available to this court; and

  163. (f) The Prosecution’s position was that if this court considered the conviction unsafe purely on the basis that the new information was not adequately explored at the trial below, then the proper course would be to set aside the conviction and remit the matter to the Judge for further evidence to be led.

  164. [101] In response to the Prosecution’s s 122(2) CPC (Cap 68) objection (see above, at [100(d)]), the Appellant, on 17 January 2012, made a formal request to the Prosecution for all the police statements of C1, the mother and Lathiff recorded in relation to the rape investigation to be produced to this Court.

  165. The second and third PTC

  166. [102] Subsequently, two more PTCs were held. The second PTC on 21 September 2011 was an uneventful affair with the Prosecution updating the court that the phone and travel records were not available yet.

  167. [103] At the third PTC on 28 October 2011, the Prosecution updated the court that:

  168. (a) The phone records received thus far from the service providers was of no use as it related to pre-paid SIM cards. As such, more time was required to uncover the phone records for the remaining phone lines; and

  169. (b) The mother’s passport revealed that five of the six trips with Lathiff were to Malaysia while one trip on 12 July 2010 was to Batam. Lathiff’s passport was reported lost in September 2010 and was unavailable for verification. The couple’s last overlapping trip on 12 October 2010 was captured in his replacement passport. This was to Malaysia.

  170. [104] The Appellant’s counsel updated the court that they:

  171. (a) Intended to interview the school counsellor in the presence of the police;

  172. (b) Wished to apply to refer to the statements made by C1, the mother and Lathiff to the police in relation to the rape charges under s 122(2) CPC (Cap 68);

  173. (c) Had been instructed that the Appellant had no objections to having his police statements produced to this court; and

  174. (d) Would be requesting from the Prosecution: (i) the mother’s CPF/employment records; (ii) the status of proceedings in relation to the theft of cough syrup investigation; and (iii) the police report relating to C1’s running away from home in 2006. A formal request to this effect was made by letter to the Prosecution on 4 November 2011.

  175. The fourth PTC

  176. [105] At the fourth PTC on 16 January 2012, the Prosecution updated the court that:

  177. (a) The only available phone records for the mother and Lathiff were from 1 September 2009 to 31 December 2010. All phone records prior to 1 September 2009 had been purged from the service provider’s records;

  178. (b) All the five trips to Malaysia made by the mother and Lathiff were through the Woodlands Checkpoint; and

  179. (c) The school counsellor was able to recall the details of the “adult acts” and “sexual endeavours” even though the school records had been purged. This would be set out in a conditioned statement to be exhibited to the court.

  180. [106] Meanwhile, the Appellant’s counsel updated the court that they would not be pursuing their requests which were set out in their letter to the Prosecution dated 4 November 2011 (see above at [104(d)]).

  181. Summary of the status of the CA’s requests before the second CA hearing

  182. [107] To summarise, at the commencement of the second CA hearing on 8 February 2012, the status of all the requests to the Prosecution was as follows:

  183. (a) The phone records of the mother and Lathiff prior to 1 September 2009 had been purged. However, more time was required to provide the phone records for the mother’s last mobile phone number and her mother’s home at Yishun;

  184. (b) The loss of IC report, according to the Prosecution, does not exist;

  185. (c) The mother’s passport pages reveal that five of the six trips she took with Lathiff were to Malaysia (via the Woodlands checkpoint) while one trip on 12 July 2010 was to Batam;

  186. (d) Lathiff’s passport was reported lost in September 2010 and was unavailable for verification. However, the couple’s last joint trip on 12 October 2010 is captured in his replacement passport. This was to Malaysia;

  187. (e) C1’s school report and the school counsellor’s conditioned statement dated 19 January 2012 were submitted;

  188. (f) C1’s full HSA statement in relation to the HSA investigation was submitted;

  189. (g) The mother, Lathiff and C1’s police statements in relation to the theft of cough syrup investigation were submitted;

  190. (h) The mother, Lathiff and C1’s police statements in relation to the rape investigation would be submitted pending the Appellant’s formal request under s 122(2) CPC (Cap 68); and

  191. (i) The Appellant’s police statements were submitted.

  192. Parties’ submissions at the second hearing before the Court of Appeal (“the second CA hearing”) on 8 Feb 2012

  193. [108] At the second CA hearing, the Appellant’s counsel submitted that:

  194. (a) Even without taking into account the fundamental problems caused by the additional new materials, the conviction in this case is totally unwarranted. Given the suspect credibility of C1, the material inconsistencies in her evidence and various aspects of her evidence which were simply inherently incredible, the Prosecution’s case fell woefully short of proof beyond a reasonable doubt. Quite apart from that, independent corroborative evidence was totally absent;

  195. (b) The new material, should this court be inclined to consider it, compounds the Prosecution’s difficulties even further;

  196. (c) Accordingly, the conviction is plainly unsafe and ought to be quashed, without the need to remit this matter back to trial to be reconsidered in light of the fresh evidence; and

  197. (d) In the alternative, a retrial should be ordered before a new judge.

  198. [109] In response, the Prosecution argued that:

  199. (a) Based on the new material there is no basis to conclude that the finding of guilt has been arrived at against the weight of the evidence or is plainly wrong; and

  200. (b) However, if this court considers that the conviction is unsafe on the basis that the matters which the court seeks to verify were not adequately explored in the trial below, then the proper course is for this court to remit the matter to the Judge for further evidence to be led.

  201. Issues before this court

  202. [110] The questions to be resolved in the appeal are as follows:

  203. (a) Was C1’s testimony “unusually convincing”?

  204. (b) Was there any corroborative evidence, which would make up for any deficiencies in C1’s testimony?

  205. (c) Did the Prosecution at the trial below prove beyond a reasonable doubt that the complaint was not the result of collusion between the mother, C1 and Lathiff?

  206. (d) If the conviction is unsafe, should a retrial before a new judge, remittance on an issue before the Judge or an acquittal be ordered?

  207. Issue 1: Was C1’s testimony “unusually convincing”?

  208. The law

  209. [111] It is well-established that in a case where no other evidence is available, a complainant’s testimony can constitute proof beyond reasonable doubt (see s 136 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”)) – but only when it is so “unusually convincing” as to overcome any doubts that might arise from the lack of corroboration (see generally the decision of this court in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 at [37]–[44] (“Liton”) and the Singapore High Court decision of XP v Public Prosecutor [2008] 4 SLR(R) 686 at [27]–[36] (“XP”)).

  210. [112] The need for “fine-tooth comb” scrutiny in so far as allegations of sexual abuse are concerned is particularly acute, “given both the ease with which allegations of sexual assault may be fabricated and the concomitant difficulty of rebutting such allegations” (see the Singapore High Court decision of Chng Yew Chin v Public Prosecution [2006] 4 SLR(R) 124 at [33], cited with approval in Liton at [37]–[38]).

  211. [113] In XP, Rajah JA observed (at [31]) that the requirement that the alleged victim’s evidence ought to be “unusually convincing”:

  212. [114] Apart from stating that its role is that of a cognitive aid, Rajah JA further elaborated on what “unusually convincing” entails (see XP at [29]–[35]). Rajah JA’s pronouncements can be distilled into the following propositions:

  213. (a) First, subsequent repeated complaints by the complainant cannot, in and of themselves, constitute corroborative evidence so as to dispense with the requirement for “unusually convincing” testimony. As Yong Pung How CJ noted in the Singapore High Court decision of Khoo Kwoon Hain v Public Prosecutor [1995] 2 SLR(R) 591 (“Khoo Kwoon Hain”) at [51]:

  214. (b) Secondly, the “unusually convincing” reminder should not be confined to categories of witnesses who are supposedly accomplices, young children or sexual offence complainants;

  215. (c) Thirdly, a conviction will only be set aside where a reasonable doubt exists and not simply because the judge did not remind himself of the “unusually convincing” standard;

  216. (d) Fourthly, an “unusually convincing” testimony does not overcome even materially and/or inherently contradictory evidence to prove guilt beyond a reasonable doubt. The phrase “unusually convincing” is not a term of art; it does not automatically entail a guilty verdict and surely cannot dispense with the need to consider the other evidence and the factual circumstances peculiar to each case. Nor does it dispense with having to assess the complainant’s testimony against that of the accused, where the case turns on one person’s word against the other’s; and

  217. (e) Fifthly, even where there is corroboration, there may still not be enough evidence to convict.

  218. [115] Moving from the level of scrutiny to the elements of what an unusually convincing testimony consists of, it is clear that a witness’s testimony may only be found to be “unusually convincing” by weighing the demeanour of the witness alongside both the internal and external consistencies found in the witness’ testimony. Given the inherent epistemic constraints of an appellate court as a finder of fact, this inquiry will necessarily be focussed on the internal and external consistency of the witness’s testimony. However, this is not to say that a witness’s credibility is necessarily determined solely in terms of his or her demeanour. As Rajah JA observed in XP (at [71]–[72]):

  219. Application of law to the facts

  220. [116] In light of our subsequent finding that the Judge erred in finding the medical evidence and C2’s testimony to be corroborative (see Issue 2 below, at [177]–[208]), the need for C1’s testimony to be “unusually convincing” takes on greater significance. However, as will be demonstrated below, the Official Transcript reveals a number of significant discrepancies in C1’s testimony which demonstrates that it is not “unusually convincing.” Moreover, this assessment is confirmed by the new material which has been disclosed by the Prosecution at the request of this court.

  221. C1’s evidence at the trial below

  222. C1’s pre-trial testimony

  223. [117] C1’s First Information Report (“FIR”) was lodged at Ang Mo Kio South NPC at 4.48pm on 29 April 2009. The report was signed by C1 and reads (in its entirety), as follows:

  224. [118] Suffice it to note, that apart from its brevity, the offence alleged in the FIR took place in 2006 whereas the proceeded charges took place in 1999 (one charge), 2003 (two charges), 2004 (one charge) and 2009 (one charge), respectively.

  225. [119] C1 was also interviewed by Dr Lim and Dr Pang on her mental state and sexual history, respectively. However, as will be demonstrated below (at [188]–[209]), both Dr Lim and Dr Pang’s reports, contrary to the Judge’s view (see above at [84]), are not corroborative and are of questionable probative value.

  226. C1’s testimony at the trial

  227. Recollection of the first charge

  228. [120] In relation to the first charge, C1’s evidence-in-chief was that the Appellant made her hold his penis and suck it and put his finger on her vagina. In cross-examination, C1 said that the Appellant made her hold his penis and suck it and penetrated her vagina with his finger. It appears that the Judge preferred her earlier testimony without, with respect, noting this consequential inconsistency (see the GD at [16]).

  229. Recollection of the second charge

  230. [121] In relation to the second charge, C1’s evidence-in-chief was that the Appellant inserted his finger into her vagina, made C1 suck his penis and inserted his penis into her vagina. This account was repeated by C1 when she was cross-examined by defence counsel.

  231. [122] However, Dr Pang’s report mentioned that she was told by C1 that the first alleged rape also involved “digito-vaginal, oral-penile, oral-vaginal and penile-vaginal penetration” [emphasis added]. In her evidence-in-chief, Dr Pang confirmed that she had expressly asked C1: “[d]id he put his mouth to your vagina?” and that C1 had answered the question in the affirmative. C1 did not mention at any time during her testimony in the court below that the Appellant had put his mouth on her vagina during this incident. This takes on added significance, considering that C1 purported to give a detailed step-by-step account of the first alleged rape in 2003.

  232. Recollection of the fifth charge

  233. [123] Regarding C1’s recollection of the fifth and most contemporaneous charge which took place on 29 April 2009, the Judge found (see the GD at [64]), as follows:

  234. [124] However, despite its contemporaneous nature, in our view, C1’s testimony suffers from a number of significant inconsistencies which were not, with respect, addressed by the Judge.

  235. [125] First, C1 testified that the Appellant had held her right wrist with his left hand and pulled her towards him. The Appellant managed to unbutton the first button below the collar button of her blouse. She told the Appellant: “[C1] tak nak buat itu.” (translated from Malay: “[C1], does not want to do it.”). The Appellant replied: “Macam tak biasa itu.” (translated from Malay: “As if you haven’t done it before.”). C1 then said: “[C1] nak call mummy ini.” (translated: “I’m going to call mummy.”), took out her mobile phone and dialled her mother’s number. The Appellant tried to close C1’s flip phone but by that time her mother had picked up. C1 asked her mother where she was. The mother replied that she was on the bus. C1 told mother that she was leaving the flat. Then, C1 quickly took her school bag and shoes and walked out of the flat.

  236. [126] When, however, C1 was recalled, she testified that the Appellant had held her right hand with his left hand and she stood up. She clarified that while the Appellant was holding her right hand and unbuttoning her blouse, she managed to take out her mobile phone from right skirt pocket with her right hand. When C1 was making the call with her mobile phone, the Appellant tried to close the phone’s flap as that would end the call. C1 further added that that while she was struggling, the Appellant moved behind her and held her left hand. When questioned by defence counsel whether this was mentioned in C1’s evidence-in-chief, she replied that she did not state so. Nonetheless, C1 went on to state that after the Appellant had moved behind her, he held her left hand and then she took out her mobile phone from her right skirt pocket. When further questioned, she changed her earlier position and said that the Appellant had not moved behind her but she had shifted. She later maintained that the Appellant did not release her hand throughout. C1 also stated that the Appellant did not manage to unbutton any button on her blouse. C1 clarified that her earlier equivocation on the question was because she was tired and confused. This led the Judge to amend the fifth charge of his own accord to:

  237. [127] On either of C1’s accounts, it seems improbable that she was able to overpower the Appellant’s grip on her right hand or wrist, reach into her right skirt pocket, fish out her mobile phone and call her mother – all with the same right hand, whilst in the midst of a struggle. Furthermore, it is also questionable how the Appellant was able to unbutton C1’s blouse, hold her hand throughout and try to stop her from using her mobile phone – all at the same time.

  238. [128] Secondly, when C1 confided in her mother, the latter testified that she had asked C1 whether it was “sedap” (translated: “nice or not”). The mother explained that she asked this question to find out if her daughter was a willing party. When recalled, C1 denied that the mother had said this.

  239. [129] Even taking into account the fact that a victim’s testimony of such a traumatic event would inevitably be imperfect, these are troubling inconsistencies which were apparently not scrutinised below.

  240. The frequency of the alleged rapes

  241. [130] Apart from the internal inconsistencies within C1’s trial testimony with regard to the alleged rapes, the new material brought to focus a significant external inconsistency in C1’s account of the frequency of the alleged rapes. To be clear, this inconsistency was, as we shall see, already present in the Official Transcript and exhibits in the trial below. In this regard, the relevant new material, viz, C1’s statements recorded by the police, only serves to confirm our conclusion that C1’s testimony was not “unusually convincing”.

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