Public Prosecutor v Kesavan Pillai Govindan [2017] SGHC 44

Introduction

This is an appeal by the Public Prosecutor (“the Prosecution”) against the acquittal by the District Judge in respect of the following charge under s 337(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (“the charge”) faced by Kesavan Pillai Govindan (“the Respondent”):

The decision of the District Judge can be found in Public Prosecutor v Kesavan Pillai Govindan [2016] SGMC 25.

Background facts

The background facts are simple. The Respondent stopped his car along the side of Guillemard Road, which was marked with double yellow lines, and was told to move off by enforcement officers because parked vehicles on both sides of the road were causing traffic congestion. Enforcement officer Goh Kar Luan Maggie (“PW6”) had difficulty getting the Respondent to drive off. Enforcement officer Muhammad Nuralif Affendi Bin Zulkafli (“PW1”) then went over to speak to the Respondent. They got into an argument. PW1 decided to book the Respondent. In the course of trying to issue a summons, certain events took place which resulted in the Respondent being charged for a rash act endangering the personal safety of PW1 by driving his car forward, when PW1 was standing in front of the Respondent’s car, thus causing his car to hit the left anterior shin of PW1 twice.

Having considered the District Judge’s grounds of decision, the parties’ submissions and the evidence, I allow the Prosecution’s appeal against acquittal and find the Respondent guilty of the charge. My reasons are as follows.

Elements of the offence

The elements of an offence under the rashness limb of s 337(a) of the Penal Code are:

(a) the accused caused hurt to a victim by doing any act; and

(b) such an act was committed so rashly as to endanger the personal safety of others.

Respondent’s evidence

The District Judge summarised the Respondent’s evidence as follows at [4] of his decision:

I note that the above summary is not entirely accurate because the Respondent did not mention that PW1 had “rushed forward to the front of his car”. Instead, the Respondent stated in his evidence-in-chief that PW1 walked to the front of the car. When the Respondent reversed his car, PW1 walked closer to the Respondent’s car again. The Respondent reversed again. He could not remember whether it was his second or third reversal. His car tyre was almost in contact with the kerb on his left, and the car could not reverse further. PW1 looked at him for one to two seconds before PW1 took a few steps to move to the pavement. When the path was clear, the Respondent drove off on his right.

Apart from the fact that there is nothing in the Respondent’s evidence to suggest any rapid or sudden movement or a “rushing forward” on the part of PW1, I further observe that, although the Respondent had testified to making several reversals , he did not make (or chose to refrain from making) any positive assertion of driving his car forward again after each reversal. The Prosecution’s case is that the Respondent had reversed each time after having inched forward and hit PW1’s leg with wanton disregard whether he had hit PW1.

With the limited space available since the car was close to the kerb, I find it hard to believe that the Respondent could repeatedly reverse the car (without having to move the car forward again after each reversal). Furthermore, if PW1 had indeed taken the trouble to walk closer to the front of the car after each reversal, to hem the car in so as to prevent the Respondent from leaving the scene, it is rather odd for PW1 thereafter to look at the Respondent for one to two seconds and then decide to move aside to the pavement to provide sufficient clearance for the Respondent to drive away, especially when PW1 had wanted to issue a summons to the Respondent and had not completed doing so. When examined carefully, the Respondent’s testimony of how it all happened does not quite make any logical sense. For completeness, I now set out the Respondent’s evidence-in-chief:

During his cross-examination, the Respondent reiterated that, before he started to drive off, PW1 was by his side. He insisted that, when he moved the car, there was no one in front of him. As he was just moving forward, PW1 walked by the side of the car towards the front of the car. That was when the Respondent stopped after having moved off by “[m]aybe a feet, half a feet” . He said that he could see PW1 “very clearly” . When he stopped, PW1 went “somewhere along the corner front of the car”. He stopped his car “because [he] could see that, by that time, [PW1] has already come to the corner front already” . He also said that he stopped the car because “[PW1] was walking close to the front corner. He’s very close to the car”. The Respondent said that he was shocked and surprised when PW1 was “coming to the front” . The Respondent then paused in order to change from the forward gear to the reverse gear and he reversed his car “just to create a safe distance” . There was no sign of PW1 stumbling or being shaken. He was “rock solid standing throughout the incident” . As the Respondent reversed and turned to his extreme right to move forward, PW1 “very steadily, walked closer to the car again.”

The car had hit PW1 twice

On the first element of actus reus, the Respondent argues that his car did not hit PW1 at all thereby negating any possible hurt being caused to PW1. I reject this submission outright.

Although PW1’s evidence was found to be unreliable, the District Judge nevertheless found at [15] that there was a “slight collision” between the Respondent’s car and PW1. The District Judge said at [15] that the evidence suggested that “PW1’s movement to the front of the car was sudden and unexpected, and the slight collision between the vehicle and PW1’s leg was due in no small part to PW1’s instinctive reaction to stop the [Respondent] from driving off.” [emphasis added]. The District Judge also found as “untenable” the Respondent’s evidence that his car did not have any contact with PW1 (at [16]). I am not inclined to disturb the District Judge’s finding of a “slight collision” in view of the objective medical evidence on PW1’s injury and the oral testimony of another enforcement officer Muhammad Danial Hanis (“PW5”), whom the District Judge found at [15] to be the “most credible witness among those present at the scene of the incident.” [emphasis added]. I interpret this to mean that PW5 is more credible than his fellow enforcement officers present at the scene, namely PW1, PW6 and Syed Abdullah Bin Syed Ja’affar (“PW2”); and that PW5 is also more credible than the Respondent.

PW5 had testified that the driver started moving “forward, to the right” and he saw the bumper of the car touching PW1’s lower left leg. PW1’s left leg then started to shake. The medical report from Dr Ma Christina Racho Arroyo (“PW3”) states that there was contusion on the anterior shin of PW1’s left leg . PW3 prescribed Ponstan to PW1 for the pain and swelling over his anterior shin.

However, the District Judge did not make any specific finding on whether PW1 was hit a second time. This is relevant not only to the question of sentence if the Respondent is found guilty, but also to the degree of rashness (if any) of the acts of the Respondent.

Evidence of PW5

Since the District Judge regarded PW5 at [15] to be “a fair and objective witness” and had “fully accept[ed] his testimony”, I will therefore set out PW5’s evidence in some detail.

During examination-in-chief, PW5 said that PW1 was standing next to the driver’s side of the door. PW1 asked the Respondent to step out of the car because he was about to issue the summons. Instead of complying, the Respondent started to put on his seat belt and placed his right hand on the wheel of the car and his left hand on the gearbox. At this juncture, PW1 started to go to the front of the car. While PW1 was about to stand in front of the car, the car had not moved yet. PW1 stood about 20 to 30 cm away in front of the car on the right side, directly facing the Respondent (see exhibit P7 (annexed to this judgment) drawn by PW5 indicating the locations marked with “x” of each of the four enforcement officers at the time when PW1 was standing 20 to 30 cm in front of the car). The Respondent started to drive forward to the right. PW1 raised his left hand gesturing to the Respondent to stop. The summons book was at that time in PW1’s right hand. That was when PW5 saw the bumper of the car touching PW1’s lower left leg. PW1’s left leg started to shake. Then, the Respondent reversed his car and he attempted a second time to turn to the right to move off but he could not do it. On this occasion, the car did not hit PW1. The Respondent reversed again and he “did the same thing” but, at this point of time, PW1 took a step back and his upper body was “wobbling a bit”. That was when the Respondent drove off. PW5 went over to PW1 to ask him if he was “okay”. Later, PW5 saw PW1 rubbing the lower part of his left leg.

PW5 remained unshaken during his cross-examination and elaborated that PW1 had already been standing in front of the car for one or two seconds before the Respondent first started to move his car forward:

From the above testimony, PW5 was quite certain that PW1 was hit by the car a second time.

Defence counsel put the Respondent’s instructions to PW5 that after the Respondent had stopped and reversed his car, after seeing PW1 in front of the car, PW1 immediately walked towards the front of the car to stand closer to the car. PW5’s response was an emphatic negative as follows :

I find that the evidence of PW5, found to be a credible witness by the District Judge, sufficiently establishes beyond a reasonable doubt that PW1 was hit a second time on his left leg again at the anterior shin area by the front bumper of the car. According to PW5, this occurred when the Respondent drove his car forward for the third time, after having reversed twice before, in an attempt to leave the scene.

Based on the undisputed objective fact that the contusion is not on the side or back of PW1’s left leg but on the anterior shin, which is at the front of his leg, I am of the view that this is entirely consistent and supportive of the Prosecution’s case that PW1 was standing stationary in front of the car facing the Respondent, filling up the summons form, when the car inched forward towards PW1 on two separate occasions and the front of the car collided onto PW1’s anterior shin on each of these two occasions to cause the contusion. The location of the contusion itself is wholly inconsistent not only with the Respondent’s evidence but also with the Respondent’s case and analysis that the car did not and could not have hit PW1, and it effectively demolishes the fundamental basis of the Respondent’s case.

For completeness, I will also set out briefly below the evidence of the other two eyewitnesses, namely PW6 and PW2, although the District Judge had reservations on their credibility.

Evidence of PW6

PW5’s evidence is largely corroborated by PW6, who said that PW1 moved quickly to the front of the vehicle when the Respondent indicated that he wanted to move off by putting his hands on the steering wheel. PW6 confirmed that the car had not moved before PW1 had moved to the front of the car. PW1 stood in front of the car, and raised his hand over the bonnet of the car to signal to the Respondent to stop. This led the District Judge to query whether PW1’s lower body was actually quite close to the front of the car at this point of time, to which PW6 answered in the affirmative . Based on PW6’s demonstration in court, PW1 stood less than a foot away from the front of the car before the car moved. The Respondent ignored PW1, reversed and inched forward and hit PW1’s legs. PW1 stumbled. He then tried to regain his balance. The Respondent reversed the vehicle again, and the bumper hit PW1 once more. He reversed the third time and sped off on the right side . PW6 observed that PW1 was “shaky” and not walking normally after the incident. During cross-examination, PW6 agreed that, from where she was standing near the left front passenger window, she did not see the actual contact between the bumper and PW1’s leg although she witnessed the car heading towards PW1 before PW1 stumbled .

The main discrepancy between PW5’s and PW6’s evidence is not the fact that PW1 was hit twice but on which two occasions, out of the three times that the car moved forward, that PW1 was hit the second time. I also note that PW1’s evidence seems to be aligned with PW6’s evidence in that both PW1 and PW6 testified that PW1 was hit the second time after the first reversal of the car following the first hit, whereas PW5’s evidence is that PW1 was hit the second time after the second reversal of the car following the first hit.

I also note that there is another minor discrepancy with respect to the time when PW1 raised his hand to indicate to the Respondent to stop his car. PW1 had testified that he immediately raised his hand after he first felt pain (presumably he was too busy writing on the summons form and did not pay much attention earlier to the car until the car hit him for the first time) . But both PW5’s and PW6’s evidence appears to be that PW1 had raised his left hand gesturing to the Respondent to stop just when or just before PW1 was hit the first time .

Evidence of PW2

PW2’s evidence is that there was an argument between the Respondent and PW1. PW1 then walked in front of the car and was ready to issue the summons. While PW1 was standing in front of the car, facing the driver and writing the summons, the driver drove the car forward. PW1 told the driver to stop. The driver then reversed the car and drove the car forward again and the car hit PW1’s left leg. PW1 lost his balance but did not fall. The driver than reversed the car and drove off from the scene. PW2 observed PW1 to be limping after the incident . To a specific question from the trial Prosecutor, PW2 confirmed that the car had not been moving when PW1 had walked to and stood in front of the car . PW2 was however unsure how many times the car had hit PW1 but added that it was at least once .

In cross-examination, PW2 agreed with defence counsel that when the Respondent tried to turn to the right, to go to the right of PW1, PW1 immediately moved closer to the car, presumably to prevent him from doing so . In this last respect, I recognise that PW2’s evidence is not consistent with PW5’s evidence that PW1 did not move at all from the position when he was first hit, until the time PW1 was hit a second time .

Relevance of inconsistencies

Notwithstanding the discrepancies highlighted above, I accept the Prosecution’s submission that it would have been curious if no inconsistencies emerged at all, for, as even the Respondent’s counsel himself observed, at the time of the trial, the incident had taken place “almost 2½ years ago” . “The recollection of the details of particular events, particularly where these occur quickly, is easily susceptible to error with time”: Public Prosecutor v Tan Kim Seng Construction Pte Ltd and another [1997] 2 SLR(R) 192 at [27].

If all the different Prosecution’s witnesses had given entirely consistent accounts, questions would understandably be raised as to how they could possibly recall every specific detail of an incident with such consistency. I agree with the Prosecution’s submission that the presence of inconsistencies on tangential issues or on matters that witnesses cannot be expected to be able to recall with precision may in itself indicate the absence of collusive behaviour on the part of these witnesses to falsely implicate the Respondent.

The District Judge’s assessment of the witnesses’ credibility is plainly wrong

The District Judge had repeatedly taken issue with PW1’s assertion in his evidence that he was in fact “standing in front of the car” when the Respondent “was about to drive off” (at [12]), characterising such testimony as being inconsistent with the evidence of PW2, PW5 and PW6 and with PW1’s own police report. He viewed PW1’s evidence as unreliable. He found PW1 to be untruthful in his evidence in certain other respects. The Prosecution submits that the District Judge’s characterisation is erroneous and predicated upon a misunderstanding of each of these witnesses’ evidence.

The District Judge further found at [14] that PW2 and PW6 were “not particularly helpful” witnesses. He concluded that PW2 was “evasive” as he “did not want to get involved” and PW6 was “not objective” (at [14]).

I do note that PW2, PW5 and PW6 were PW1’s enforcement teammates on the day of the incident but all three of them had said that they had no prior, or subsequent, relationship with PW1 as he was from a different Division. In the circumstances, I believe that it is not likely for them to take sides with PW1 and give false evidence in court just to implicate the Respondent.

The Prosecution very helpfully sets out in its written submissions a clear point by point analysis with full references to the various portions of the trial transcripts in the record of proceedings (“ROP”) to explain in detail why the trial judge had erred in his assessment of the credibility of PW1, PW2 and PW6. I can do no better than set it out in full:

After having considered the above detailed submissions which are very logically reasoned , I agree with the Prosecution that the District Judge had erred in his assessment of the credibility of PW1, PW2 and PW6. His assessment was plainly wrong on a more careful evaluation of the evidence. As the District Judge had assessed the credibility of these witnesses not so much on their demeanour but primarily on their internal and external consistencies, I agree with the Prosecution’s submission that his assessment is particularly susceptible to appellate scrutiny: Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45, where it was stated at [40] that:

The Respondent’s acts were rash

I will now explain why the Respondent had, in causing hurt to PW1 twice, acted so rashly such as to endanger the personal safety of PW1 such that the second element of the offence is proved beyond a reasonable doubt.

No sudden and unexpected movements

During the appeal, the Respondent’s counsel strenuously argued that the look of “sudden shock” on the face of the Respondent shows that the Respondent did not expect and could not have reasonably expected that PW1 would move to the front of the car suddenly as he was about to drive off the first time. The evidence (which I will set out below) however shows that PW1 had not moved suddenly to the front of the car, which undermines the very basis upon which counsel hopes to frame his argument. It appears to me that the Respondent could very well have been shocked because PW1 had remained standing in front of the car when the Respondent was inching his car forward and he had failed to stop in time and thereby hit PW1.

The District Judge also concluded at [15] that PW5’s evidence showed that PW1’s movement from the driver’s side to the front of the vehicle was “sudden and unexpected”. However, this conclusion is not borne out by the evidence of PW5. PW5 (and all the other Prosecution’s witnesses) never once said that PW1 suddenly ran or sprinted to the front of the car.

PW5 had clearly asserted that (a) the vehicle was “stationary” when PW1 was in front of the car; (b) “there was a moment of pause” before the Respondent drove off; (c) about one to two seconds had elapsed between the time when PW1 stood in front of the vehicle and the moment when the Respondent drove it forward ; and (d) PW1 was “already at the front before the car moved.” If so, then where was the “sudden and unexpected” movement of PW1? Furthermore, there would also have been more than enough time in that one or two seconds for the Respondent to see exactly where PW1 was, ie, close to the front of the car, some 20 to 30 cm away, directly facing the Respondent, well before the Respondent started to drive his car slowly forward in the direction of PW1.

Even going by the Respondent’s own version of the events, PW1 was only “walking” towards the front of the car and not “running” or “sprinting”. There is similarly no suddenness in any of PW1’s actions that were supposedly so “unexpected”.

Even if it were true that the actions of PW1 had been sudden (which is not the case from the evidence) and that the Respondent could not have expected PW1 to rush to the front (which is also not the case from the evidence), that may only excuse the Respondent if he could not allegedly stop his car in time on the occasion of the first hit. However, no such possible excuse is available for the second hit, when PW1 had, after the first hit, remained standing at the same spot until he was hit a second time according to PW5 and the other Prosecution's witnesses.

The Respondent saw PW1 standing in front of his car

Based on the Respondent’s evidence, I find that there was no point of time during which the Respondent could not observe what PW1 was doing or see where PW1 was, as he was able to describe PW1’s movement in detail every step of the way, although his description of PW1’s movement differs markedly from that of the Prosecution's witnesses. He could allegedly observe PW1 “standing rock solid” and “very stable” during the whole time and even when he was reversing his car purportedly to avoid hitting PW1. He said that he could see PW1 “very clearly” .

This shows that, at least from the Respondent’s perspective, there were no blind spots where he could not observe PW1 and no momentary lapses (eg during reversing) such that he was not able to observe PW1’s movements continuously. The Respondent’s own evidence shows that he had clearly observed everything that PW1 was doing at the material time.

Having regard to PW5’s evidence and the analysis as set out at [38] above, it is also implausible that the Respondent could not and did not see that PW1 was right in front of his car.

The District Judge had himself acknowledged at [10] that “[i]f the Respondent had seen PW1 standing there in front of his car and nevertheless drove forward, it would have been a rash act.” But that was exactly what happened according to PW5 (even if the District Judge were to disregard the evidence of all the other Prosecution’s witnesses). Since there is no question that the Respondent had observed all the movements of PW1 clearly but nevertheless drove forward in the direction of PW1, the District Judge should have found the Respondent guilty of a rash act.

The Respondent was not trying to avoid PW1 when his car hit PW1

The District Judge observed at [17] that the fact that the Respondent stopped and reversed twice clearly suggested that the Respondent was avoiding PW1, rather than trying to cause hurt to him. There is no basis to make this observation since the Respondent’s version is inherently quite unbelievable, if not false in many material aspects.

If the car had reversed in the manner described by the Respondent, with PW1 always walking towards a reversing car that never moved forward towards PW1 at any stage, as the Respondent was trying to avoid hurting PW1 , then it is highly unlikely for PW1 to suffer any contusion on the anterior part of his left leg, unless PW1 deliberately knocked his shin against the car bumper after walking towards the reversed or reversing car.

If, for the sake of argument, the car had moved forward first and there was insufficient time (ie before the Respondent stopped his car to reverse) for PW1 to reach a position 20 to 30 cm in front of the car and face the Respondent after turning around, then the contusion again would not likely be on the anterior left shin of PW1. The medical evidence thus supports the Prosecution’s case but not the Respondent’s.

On the totality of the evidence, the Respondent’s version of events must be rejected in the light of the objective medical evidence, the evidence of PW5 (regarded as a credible witness by the District Judge) and also the evidence of the other two Prosecution’s witnesses, PW2 and PW6, both of whom should also have been found to be credible witnesses for the reasons I have stated.

There is clearly overwhelming evidence showing that the Respondent was fully aware of PW1’s presence in front of his car. Not only PW1 but every one of the eyewitnesses, PW2, PW5 and PW6 unambiguously attested to the fact that PW1 had stood in front of the vehicle before the Respondent first started to drive his vehicle from the parked position towards PW1. The District Judge was plainly wrong to conclude that the car started to move off before PW1 had reached the front of the car and stood in front of it, when all the Prosecution’s witnesses had clearly testified to the contrary. In this regard, the District Judge had decided against the weight of the evidence.

Even if the District Judge is minded to disregard the evidence of PW1, PW2 and PW6 and accept only the evidence of PW5, whom he found to be the most credible of all the witnesses, the District Judge should still have concluded that the car had not moved until after PW1 had reached the front of the vehicle and stood there facing the driver for one or two seconds.

Accordingly, the District Judge’s finding that the Respondent was trying to avoid PW1 is manifestly wrong. Despite seeing PW1 close to and in front of his car, the Respondent nevertheless drove his car forward and hit the anterior left shin of PW1 twice. I have no hesitation in finding such an act to be rash.

Even if PW1 was not in front of the car, but had been standing very close to the driver’s side of the car facing and talking to the driver, I would still regard it to be a rash act if the Respondent were to simply drive off without waiting for PW1 to step backwards and away from the side of the car, and even more so if the Respondent veers his car to the right in driving off. This is because there is a real risk of the right rear wheel running over the toes or feet of PW1.

When a car is parked in a car park with side-by-side parking lots, with parked cars on both the left and right sides, the driver is expected to check if there are any persons standing or walking between the two sides of the adjacent parked cars and his car before driving out of the parking lot. The space between his car and the adjacent parked cars is narrow. Thus there is a real danger of hitting these persons or running over their feet or toes if the driver simply drives straight out of the parking lot before these persons have exited from the space between the cars in question.

Hence, even if PW1 had been standing very near to the driver’s car door, or was keeping close to the side of the car, as he walked forward to try to reach the front of the car, I would still regard the Respondent’s act to be rash if he were to drive off despite knowing that PW1 was still so close to the side of the car. I accordingly disagree with the analysis of the District Judge at [11], that “if PW1 was standing next to the [Respondent] at the driver side of the door when the [Respondent] was about to move off, then when PW1 suddenly moved to the front of the car at that point in time, the [Respondent] could not be said to have acted in a rash manner.” Since the Respondent knew that PW1 was very close to the car, be it (a) standing adjacent to the car door of the driver; or (b) walking close to and alongside the car somewhere between the driver’s car door and the right front headlights of the car; or (c) already standing in front of and near the car, the Respondent would still be acting rashly by driving off under such circumstances.

Even if the Respondent could be excused for the first hit, he certainly acted rashly to endanger the personal safety of PW1 when he reversed his car and moved forward again and hit PW1 a second time. This is because by this time, the Respondent had ample opportunity to realise that when he was driving forward, PW1 was still very close to and directly in front of his car. It would have been dangerous to drive forward in such circumstances because of the high probability of injuring PW1. The Respondent should have known better than to drive forward again, even if he meant to squeeze past PW1 but without harbouring any intention to hit PW1 with his car. The Respondent clearly undertook the grave risk of having a second contact with PW1 by driving forward again under these circumstances, and it is not surprising that PW1 was hit a second time.

It certainly raises the question as to whether the Respondent’s acts were intentional when he inched his car forward and hit PW1 a second time, because the Respondent had argued with PW1 and was now irritated by PW1 who was still blocking his way to stop him from leaving the scene. The Respondent must have been angry with PW1 who was in the process of issuing him a summons. According to PW1, he moved to the front of the car and faced the driver because he wanted to take down the licence plate number of the car, and at the same time he could watch both the driver and oncoming traffic on his left (presumably for safety reasons). Whilst PW1 was filling up the summons form, he noticed the vehicle inching forward and then he felt pain on his left leg. PW1 said he immediately raised his left hand to indicate to the Respondent to stop his car. PW1 remained where he was and continued writing on the summons form. He then noticed that the car reversed and moved forward to hit him a second time, before the car reversed again and moved off.

Taking the Respondent’s case at its highest, the Respondent did not care that PW1 was in front of his car and obstructing his way. He simply tried to manoeuvre forward and squeeze his car through, though he was clearly aware that PW1 stood in the way and hemmed his car in by standing close to the front of his car, an act which in my view is no doubt rash in nature.

Conclusion

For these reasons, I allow the Prosecution’s appeal against acquittal and find the Respondent guilty of the charge and convict him accordingly.

I will now hear the parties on their submissions on sentence.