General Division of the High Court · Decided 30 March 2023

Loh Siang Piow (alias Loh Chan Pew) v Public Prosecutor

[2023] SGHC 74Case no. Magistrate’s Appeal No 9695 of 2020/01

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Introduction
[1] This is an appeal by Mr Loh Siang Piow @ Loh Chan Pew (“Mr Loh”) against his conviction on two counts of outrage of modesty under s 354(1) of the Penal Code (Cap 224, Rev Ed 2008) (“Penal Code”) and the global sentence of 21 months’ imprisonment imposed on him by the learned District Judge (the “District Judge”). The District Judge’s decision is found in Public Prosecutor v Loh Siang Piow @ Loh Chan Pew [2021] SGMC 16 dated 12 March 2021 (the “GD”), with further reasons contained in Public Prosecutor v Loh Siang Piow @ Loh Chan Pew [2022] SGMC 13 dated 9 February 2022 (the “Remittal Findings”).
[2] Mr Loh is a seasoned track and field coach of considerable reputation and standing in the athletics community in Singapore. At the material time, the complainant, to be referred to as Ms C, was an athlete training with Mr Loh. According to Ms C, Mr Loh molested her under the guise of giving her massages after their individual training sessions on 24 February 2013 and 15 March 2013. I pause to highlight that at that time, there was a prevalent practice in the athletic community for coaches to give trainees massages after intensive training. Mr Loh admits that he had given Ms C such massages once or twice, but he denied the molest allegations. He also sought to provide alibis on the dates of the alleged offences.
[3] Given that there were no witnesses to the alleged offences, the case largely pitted Ms C’s accusation against Mr Loh’s denial. At the outset, it is critical to emphasise that where a complainant’s uncorroborated testimony forms the sole basis for conviction, the court must be persuaded that the complainant’s testimony is “unusually convincing”, such that her testimony, when weighed against all the other available facts, leaves no reasonable doubt as to the accused’s guilt. It should also be borne in mind that whatever view the court may take of the defence, it remains the Prosecution’s burden to prove the elements of an offence beyond a reasonable doubt. With these guiding principles in mind, I turn to consider the merits of the appeal.
Facts
Background facts
[4] The facts have been extensively set out in the GD, and I provide a brief overview. At the material time, Mr Loh was 68 years old. He is now 79 years old. Mr Loh joined the Singapore Prison Service in 1965, and he retired as a Deputy Superintendent in 2002. As stated at [2] above, Mr Loh is also a prominent figure in the local track and field scene. In his coaching career spanning 35 years, he had coached 600 to 700 athletes. He had served as the Vice-President of the Singapore Athletics Association (“SAA”).
[5] Ms C was born in 1994 and was 18 years old at the material time. At present, she is around 28 years old. In junior college, she competed in short-distance sprints. A promising athlete, she was referred by her track teacher, Ms Michelle Eng (“Ms Eng”), to Mr Loh for track training under him. Ms C started training under Mr Loh in early December 2012. This was after she had completed her A-level examinations. She would attend group training sessions with other “private athletes” who were not participating as part of official school training. These other “private athletes” included:
The Prosecution’s case
[6] The Prosecution’s case is that in or around end January 2013, barely two months after Ms C started group training sessions with Mr Loh, Mr Loh invited her to attend one-on-one training sessions with him. Ms C testified that she attended a total of four individual training sessions with Mr Loh, with the likely dates to be 17 February 2013, 24 February 2013, 10 March 2013 and 15 March 2013 respectively. According to her, all four individual training sessions were held at the old Tampines Stadium (which has since been demolished). They were held either in the morning starting from about 9am to 10am, or in the evening starting at about 4pm to 5pm. They lasted about 1½ hours.
[7] Ms C says that the incidents in the first and second charges occurred on the second and fourth training sessions respectively. Her account of the four individual training sessions is summarised below:
(a) For the first session on 17 February 2013, Ms C says that Mr Loh offered to give her a “cool down massage”. She thought it was normal given the prevalent practice of coaches massaging their athletes, and she had received such massages before. He massaged her legs for about five to ten minutes while she was lying in a prone position on a bench along a corridor on the same level as the track beside the spectator’s stand. Nothing untoward happened on this occasion.
(b) For the second session on 24 February 2013, Ms C says that Mr Loh similarly gave her a “cool down massage” on the bench along the corridor. However, on this occasion, she says that Mr Loh massaged her from the back of her calves up to her thighs, briefly touching her multiple times in between her thighs, on her “vagina”, over her tights using his thumb. In cross-examination, she described the brief contact as “brush and rub” and “touch-and-move”. This formed the subject matter of the first charge, which states that Mr Loh rubbed Ms C’s “vulva region over her clothing in the course of massaging the back of her thighs [emphasis added]”, and that this allegedly happened at or around 12pm or at or around 6pm that day.
(c) For the third session on 10 March 2013, Ms C says that her father accompanied her to this training after she told her mother that she was uncomfortable with Mr Loh’s massage on 24 February 2013. No massage took place after this training session.
(d) For the fourth session on 15 March 2013, Ms C says that Mr Loh offered her a “cool down massage” to which she said “no” but he told her “just massage”. She says that Mr Loh then led her into an equipment room under the spectator’s stand and massaged her on a massage bed inside the room. She says that on this occasion, Mr Loh’s thumb pressed into her “vagina” (the part in between her thighs and her groin) over her tights and he continued to rub the area for about 10 to 15 seconds before she asked him to stop, to which Mr Loh responded “just relax”. She further says that she squeezed her thighs together to “block” his fingers from “having access” “to wherever he was trying to rub”, but his thumb remained squeezed in between her thighs because Mr Loh was forcing his thumbs to be there with a lot of pressure. She says that at some point, she experienced a “sick feeling” of being unable to control her body. She attributed this to her having experienced an orgasm. This was the subject matter of the second charge, which states that Mr Loh rubbed Ms C’s “vulva region over her clothing in the course of massaging the back of her thighs [emphasis added]”, and again, this allegedly happened at or around 12pm or at or around 6pm that day.
[8] More than three years later, on 30 July 2016, Ms C lodged the first information report (“FIR”).
The Defence’s case
[9] Mr Loh denied the charges. He denied that he conducted any individual training sessions for Ms C. As he had many trainees under his charge, he only conducted individual training sessions for the top athletes. He, however, conceded that as a coach, once or twice, he had provided massages to Ms C. After speed training, lactic acid would build up, and the “rub down” sessions would loosen up the muscles. This would extend from the hamstrings up to the thighs. In his police statement, he explained that he provided such massages to other trainees, explaining that it is “one of the essential things a coach would do”.
[10] In addition, Mr Loh advanced alibi defences to show that he was not at Tampines Stadium on the likely dates of the alleged offences. His account of events for the dates of the alleged individual training sessions is summarised as follows:
(a) On 17 February 2013, Mr Loh testified that he conducted a group training session for Ms C, Mr Eugene Tan and Mr Oon Kuan Yong.
(b) On 24 February 2013, Mr Loh testified that there was no training that day because he was celebrating the final day of the Lunar New Year (“Chap Goh Meh”) with his extended family. He had gone marketing in the morning for some two hours at two different markets. He returned home at around 12pm to prepare for prayers. His siblings came over to his home for prayers at around 3pm, after which they had dinner from around 6pm to around 8pm. Mr Loh’s brother testified he had gone to Mr Loh’s home for Chap Goh Meh; he also borrowed a jacket from Mr Loh that day. Mr Loh’s wife also testified that she recalled Mr Loh’s brother trying on Mr Loh’s jackets and chatting with Mr Loh.
(c) On 10 March 2013, Mr Loh testified that he attended an event named the “Venus Run” with one Mr Tan Wei Leong (“Mr Tan WL”) in the morning. Mr Tan WL was the coach and founder of Zoom Club, an athletic organisation which was officially sanctioned by the SAA on August 2012. After that, Mr Loh testified that Mr Tan WL and he had lunch and attended the Akira Swift 60th Anniversary Track and Field Championship 2013 (the “Swift Event”) at Toa Payoh Stadium from 2pm to around 4pm. Following that, the two went to a coffeeshop until around 6pm before he left for home.
(d) For 15 March 2013, Mr Loh testified that he conducted a training session for CHIJ Toa Payoh students that afternoon at the Bishan Stadium. He relied on the testimony of Ms Mylvaganam Jayalaxmi (“Ms Jayalaxmi”), then the teacher-in-charge for cross-country and long-distance runners at CHIJ Toa Payoh, and Ms Amirah Aljunied (“Ms Amirah”), then a student at CHIJ Toa Payoh at the material time. After the training which ended at around 6pm, Mr Loh testified that Mr Terry Tan picked him up from Bishan Stadium to discuss a controversy over competing organisations seeking to hold tug of war competitions in Singapore. Mr Terry Tan was a Deputy Superintendent in the Singapore Prison Service who joined the service in 1999 and a fellow office holder at the SAA.
Decision below
[11] I turn to the decision below. The District Judge found Mr Loh guilty on both charges and sentenced Mr Loh to eight months’ imprisonment for the first charge and 13 months’ imprisonment for the second charge to run consecutively.
[12] The District Judge found that Ms C’s testimony satisfied the “unusually convincing” threshold. He found Ms C’s narration of the progression of Mr Loh’s acts of sexual offending internally consistent. Nothing untoward occurred on the first training session, which explained why Ms C had thought nothing of proceeding with the second session on 24 February 2013. Mr Loh’s intrusion on the second session caused Ms C some alarm and she sought some measure of protection by bringing her father along for the third session on 10 March 2013. Even though nothing untoward happened on the third session, Ms C sought other trainees to go with her to Tampines Stadium for the fourth session on 15 March 2013, and it was only at 3.34pm that day that she realised that she would be training alone. The District Judge found that Ms C was lucid and cogent in expressing herself despite the difficulties inherent in having to revisit and articulate a patently traumatic experience.
[13] The District Judge found that Ms C’s testimony was externally consistent with the testimonies of her parents, Ms W (a fellow “private athlete” training with Mr Loh), and Mr A (Ms C’s friend in whom Ms C confided). In particular, the District Judge found that Ms C’s father’s account “added immeasurably to the extrinsic consistency” because he testified that he had been present at an individual training session between Ms C and Mr Loh. The father’s evidence was that it started raining during the training which was consistent with metrological evidence for Tampines Stadium showing an episode of rain between 5pm and 6pm on 10 March 2013.
[14] The District Judge also found that Ms C’s testimony cohered with sets of near-contemporaneous communications of the alleged acts of molestation. These included:
(a) Ms C’s WhatsApp message to Ms W, a fellow private trainee, on 17 March 2013 at 11.36pm, in which Ms C asked Ms W not to leave her to train alone with Mr Loh. Ms C further said, “I rily [sic] don’t like it when he massages, feels like he’s molesting me or smth, kept rubbing my groin”, to which Ms W replied “Rly? Kinda felt the same way too like weird”.
(b) Ms C’s message to Mr A, her close friend and track and field senior in junior college, on 30 March 2013, in which she stated “I think Mr. Loh molested me, idk ... Like I asked [Ms W] and she said that she felt the same thing but she didn’t tell anyone”. When Mr A inquired more about Mr Loh’s acts of molestation, Ms C said “it’s always like in a room alone and I told him to stop but he went like just relax” and “Yeah it kinda got worse, like first few times, he just touched”.
(c) Ms C’s message to Ms Eng on 2 June 2016, at 3.52pm in which Ms C stated “Rmb last time I told you [M]r Loh massaged me and made me uncomfortable, I didn’t rily [sic] tell you what exactly happened. He kinda made me train individually with him on three occasions and kept massaging me further and further up my thighs, in this equipment room behind the spectator stands and eventually he rubbed me down there.”
[15] The District Judge also found that the inconsistencies in Ms C’s testimony did not materially affect her credibility because she had provided adequate explanations for them. For instance, Ms C initially identified the second charge to have occurred on Sunday, 17 March 2013, but changed her testimony on the fifth day of trial and claimed that it occurred on Friday, 15 March 2013 instead. The District Judge accepted Ms C’s explanation that she had erroneously deduced the date of the second charge from the dates of her WhatsApp chats with Ms W and Mr A. He also noted that Mr Loh has not shown that Ms C had any malicious intention to frame Mr Loh.
[16] The District Judge rejected all of Mr Loh’s alibi accounts for 24 February 2013, 10 March 2013 and 15 March 2013 and found that Mr Loh had failed to establish his alibi defences on a balance of probabilities:
(a) In relation to Mr Loh’s alibi for 24 February 2013, the District Judge rejected his defence because there was no documentary evidence that he had gone marketing with his wife to prepare for Chap Goh Meh. The District Judge disbelieved Mr Loh’s brother’s account that he borrowed a jacket from Mr Loh to attend his wife’s award ceremony because the letter from his wife’s employer announcing the conferment of the award was dated 11 March 2013, which was 15 days after 24 February 2013 and Mr Loh’s brother could not have had prophetic foresight of the award. The District Judge also disbelieved Mr Loh’s wife’s testimony because she merely recounted what the family would usually do on Chap Goh Meh and had no distinct recollection of 24 February 2013.
(b) In relation to Mr Loh’s alibi for 10 March 2013, the District Judge rejected his defence because there is no documentary evidence of his presence at the Swift Event. Mr Loh and his witness, Mr Tan WL, were unable to name a single athlete who attended the Swift Event and identify them, despite them occupying a conspicuous part of the Toa Payoh Stadium where athletes reported for their events. Neither of them had seemed aware of a spell of rain in the late afternoon to early evening of 10 March 2013 which was indicated by the meteorological reports.
(c) In relation to Mr Loh’s alibi for 15 March 2013, the District Judge rejected Mr Loh’s alibi because of inconsistencies between Mr Loh’s testimony and that of Ms Jayalaxmi and Ms Amirah regarding the nature of the training that day. Neither Ms Jayalaxmi’s attendance record, nor Mr Loh’s payment form, included 15 March 2013 as a training date. The District Judge believed the Prosecution’s rebuttal witness, Mr Daryl Chan (“Mr Chan”), a track teacher at CHIJ Toa Payoh, who testified that there was no official training for track athletes on 15 March 2013 because Friday trainings had been replaced by Tuesday trainings for the entire first quarter of 2013. The District Judge disbelieved Mr Terry Tan’s testimony because he found it unreasonable and irrational for Mr Terry Tan to make a circuitous trip to pick Mr Loh from Bishan Stadium to discuss a simple problem which they could have discussed over phone or text.
[17] The District Judge went on to find that Mr Loh’s alibi accounts on 10 March 2013 and 15 March 2013 were “Lucas Lies” (see Regina v Lucas (Ruth) [1981] 3 WLR 120 (“Lucas”)) which further corroborated the Prosecution’s case.
[18] Lastly, the District Judge also found that Mr Loh’s act of gathering photographs he took with Ms C and Ms W before he met the police on 2 August 2016 for his statement to be recorded suggested that he knew the identities of both his accusers even prior to the meeting. This was therefore indicative of his guilty conscience. In this connection, the District Judge rejected Mr Loh’s explanation that IO Goh Teck Heng (“IO Goh”) revealed the names of the complainant to him in a phone call on 31 July 2016, reasoning it was implausible for an experienced investigation officer of 28 years’ standing to have made such a fundamental error as to reveal the names of the victims of sexual offences to a suspect.
[19] In relation to sentencing, the District Judge applied the sentencing framework laid down by the High Court in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) and held that both offences fell within Band 2 of Kunasekaran, the indicative sentencing range of which would be five to 15 months’ imprisonment. The first charge fell within the moderate end of Band 2 because of the shorter duration of contact, whereas the second charge fell within the extreme end of Band 2 given the longer duration of the contact and the pressure Mr Loh applied on Ms C’s vagina which caused Ms C to have experienced the involuntary orgasm.
[20] On 4 June 2021, Mr Loh filed HC/CM 54/2021 to adduce fresh evidence consisting of a statutory declaration from Ms Amelia Monteiro (“Ms Monteiro”) dated 21 Oct 2020, testifying that she was with Mr Loh at Choa Chu Kang stadium on 31 July 2016 and that she overheard the police informing Mr Loh of the names of the complainants over the phone. I remitted the matter to the District Judge to take additional evidence on, inter alia, the timing of the race Ms Monteiro participated in on 31 July 2016 and what Ms Monteiro heard Mr Loh say in the purported phone call.
[21] On 9 February 2022, the District Judge found that the additional evidence had no effect on Mr Loh’s guilty verdict. In the Remittal Findings, he found Ms Monteiro’s testimony to be unreliable because of her inconsistencies with Mr Loh’s testimony as to the number of calls from IO Goh and the exact words said by IO Goh during the calls. He also found Ms Monteiro’s evidence to be classic hearsay and held that it is a “massive leap of conjecture” for Ms Monteiro to conclude that the caller was a police officer who had uttered the names of the complainants.
The parties’ cases on appeal
The appellant’s arguments
[22] In his appeal against the conviction for both charges, Mr Loh challenges the credibility of Ms C’s testimony on the grounds that:
(a) Ms C could not remember, inter alia, the timings of the alleged individual training sessions and how the sessions were arranged;
(b) for the first charge, Ms C was unsure whether the alleged contact with her vagina was accidental and she had suspected that it might be because Mr Loh was “so old and big and clumsy”;
(c) Ms C was flippant in her testimony on the exact part of her vagina that Mr Loh allegedly touched for the second charge;
(d) the descriptions of both alleged incidents of molest are anatomically awkward, if not downright impossible;
(e) Ms C’s apparent normalcy and delay in reporting after the alleged incidents were inconsistent with that of a victim of molest;
(f) The near-contemporaneous communications with her friends were inaccurate, and show Ms C to be prone to exaggeration; and
(g) Ms C’s testimony is inconsistent with that of the other witnesses. This is especially when Ms C testified that she had informed her mother that she felt uncomfortable with Mr Loh’s massage after the incident in the first charge, but both her parents testified that they were only made aware of the allegation of molest after Ms C made the police report.
[23] Mr Loh argues that the District Judge had applied the wrong standard of proof in holding that “the burden is on the defence to establish an alibi on a balance of probabilities”. He relies on the cases of Ramakrishnan s/o Ramayan v Public Prosecutor [1998] SGHC 273 (“Ramakrishnan”) and Syed Abdul Aziz v PP [1993] 3 SLR(R) 1 (“Syed Abdul Aziz”) and argues that the burden of proving his alibi is only an evidential burden on the defence and all that the defence has to do is to raise a reasonable doubt.
[24] Mr Loh further argues that the District Judge erred in rejecting his alibis:
(a) In relation to his alibi on 24 February 2013, Mr Loh argues that the District Judge was too quick in disbelieving his brother’s testimony that he borrowed a jacket from Mr Loh on Chap Goh Meh, especially when his brother’s testimony is corroborated by his wife.
(b) In relation to his alibi on 15 March 2013, Mr Loh argues that the District Judge was too quick to reject Ms Jayalaxmi’s and Ms Amirah’s testimony merely because the attendance records did not show any training on 15 March 2013, since both witnesses have testified that it was “light training” which may not have been recorded. Mr Loh also argues that it is unfair and unsafe for the District Judge to dismiss Mr Terry Tan’s testimony simply because Mr Terry Tan took a circuitous journey to Bishan Stadium to discuss an issue with Mr Loh.
(c) In relation to his alibi on 10 March 2013, Mr Loh argues that the District Judge should not have disbelieved Mr Tan WL’s testimony merely because of minor inconsistencies such as the weather on the day, especially when Mr Tan WL had a good recollection of what transpired that day.
[25] Mr Loh further argues that even if the District Judge disbelieved the testimonies of the alibi witnesses, he should not have found that Mr Loh’s alibis constituted Lucas Lies given that there was no specific finding that any of the witnesses were lying.
[26] Mr Loh also contends that District Judge erred in drawing inferences about Mr Loh’s guilty conscience from his knowledge of the complainants’ identities and the proximate dates of the offences before he met the police on 2 August 2016. He argues that the District Judge should not have rejected the testimony of Ms Monteiro for minor inconsistencies.
[27] Mr Loh further argues that the Prosecution has breached its disclosure duty under Muhammad bin Kadar v PP [2011] 4 SLR 1205 (“Kadar”) and Muhammad Nabill bin Mohd Faud [2020] SGCA 25 (“Nabill”), in failing to disclose (a) Ms C’s statements to the police; and (b) Ms Eng’s other statements to the police.
[28] To round up, Mr Loh argues that at the end of the day there is a “very real possibility that this may have been a case of a mistaken impression by [Ms C], which she had gradually built up over time with the echo chamber that was her private discussions with her personal friends.” This has not been considered by the District Judge.
[29] In relation to his appeal against sentence, Mr Loh argues that the first charge should have been placed at the lowest end of Band 2 and the second charge should have fallen within the lower to middle end of Band 2, reasoning that (a) there was no skin-to-skin contact for both offences; (b) there was no evidence that Ms C suffered from emotional trauma; (c) Ms C was not a minor and should not be considered a vulnerable victim; and (d) there was no premeditation or deception by Mr Loh. He also argued that insufficient weight has been given to the mitigating factors, such as his lifelong contributions to the athletics scene in Singapore and to the Singapore Prison Service.
The Prosecution’s arguments
[31] The Prosecution argues that the District Judge is correct in assessing Ms C to be an unusually convincing witness. He based this on “the strength of her testimony, when analysed with the supporting evidence, as well as the case presented by the defence, within the factual matrix of the case.”
[32] The Prosecution argues that Ms C’s evidence was internally consistent, even after extensive cross-examination. She had provided compelling and detailed evidence of both incidents, which showed a logical progression and testing of boundaries by Mr Loh. Ms C’s change in position concerning the date of the second charge does not dent her internal consistency. The Prosecution refers to the case of Tay Wee Kiat and another v Public Prosecutor and another appeal [2018] 4 SLR 1315 in which the court held that the victim’s mistake in the date alone is insufficient to dent her internal consistency, given that the trial occurred some four years later after the alleged incidents of abuse.
[33] The Prosecution further argues that Ms C’s post-incident conduct, ie, her apparent normalcy and delay in reporting to the police, is reasonable and coheres with her testimony that she had great difficulty processing and coming to terms with Mr Loh’s actions, and that she was angry and upset at him for what he had done to her. The delay in reporting, submits the Prosecution, has been reasonably explained.
[34] Further, Ms C’s testimony was supported by an abundance of near-contemporaneous text messages, twitter posts, and witnesses. In particular, the District Judge was right to observe that the Whatsapp messages with Ms W and Mr A could not have been fabricated in 2013 only for her to wait three years to make allegations against Mr Loh.
[35] The Prosecution also submits that the District Judge is correct to reject Mr Loh’s alibi defences and that the burden of proof falls on a defendant to prove the defence of alibi on a balance of probabilities under s 105 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”). The Prosecution further submits that even on the lower threshold of reasonable doubt, Mr Loh has not adduced sufficient evidence to raise a reasonable doubt that he was not at Tampines Stadium at the material time of the offences.
[36] The Prosecution further argues that the District Judge was correct in rejecting Ms Monteiro’s evidence given that (a) the timing of the IO Goh’s call and the timing of her morning race makes it impossible for her to have been with Mr Loh at the material time; and (b) her testimony is contradicted by Mr Loh’s testimony.
[37] The Prosecution finally argues that it did not breach any of its disclosure obligations under Nabill and Kadar.
[38] Turning to sentencing, the Prosecution argues that the individual and global sentence are appropriate.
Issues on appeal
[39] Based on the parties’ submissions, in relation to conviction, these are the main issues that arise for my determination:
(a) Whether the District Judge erred in accepting Ms C’s testimony (“Issue 1”);
(b) Whether the District Judge erred in rejecting Mr Loh’s alibi defence on a balance of probabilities and in finding that Mr Loh’s accounts of the events of 10 March 2013 and 15 March 2013 amounted to “Lucas Lies” (“Issue 2”);
(c) Whether the District Judge erred in drawing inferences of Mr Loh’s guilty conscience based on his conduct of gathering photographs of Ms C and Ms W before meeting the police on 2 August 2016 (“Issue 3”);
(d) Whether the District Judge erred in finding that Ms C is an unusually convincing witness (“Issue 4”); and
(e) Whether the Prosecution has failed to comply with its disclosure obligations under Kadar and Nabil (“Issue 5”).
The appellate court’s role
[40] Apart from Issue 3 which involves legal arguments on the burden and standard of proof for an alibi defence, the appeal essentially challenges the District Judge’s factual findings. I begin by affirming the well-established position that in assessing findings of facts made by a trial judge, an appellate court’s role is limited. Where the appellant seeks to appeal against a finding of fact that hinges on the trial judge’s assessment of the credibility and veracity of witnesses based on the demeanour of witnesses, the appellate court would intervene only if the finding of fact can be shown to be plainly wrong or against the weight of the evidence. An appellate court may also intervene if after taking into account all the advantages available to the trial judge, it concludes that the verdict is wrong in law and therefore unreasonable: ADF v Public Prosecutor [2010] 1 SLR 874 (“ADF”) at [16(a)]. However, where a finding of fact by the trial judge is based on inferences drawn from the internal consistency (or lack thereof) in the content of the witnesses’ testimony or the external consistency between the content of their testimony and the extrinsic evidence, the appellate court is in as good a position as the trial court to assess the veracity of the witnesses’ evidence (ADF at [16(b)]).
Issue 1: Whether the District Judge erred in accepting Ms C’s evidence
Analysis of Ms C’s evidence for the first charge
[41] I turn to analyse Ms C’s evidence on the substance of the first charge, being her description of the alleged massage on 24 February 2013. Ms C described that Mr Loh started massaging her calves, after which he moved up to her thighs and that “his hand would unnecessarily go so high up and his thumb was just touching there multiple times [emphasis added]”. When asked to identify more precisely which part of her body Mr Loh came into contact with, Ms C responded, “My vagina. But isn’t it the correct --- it’s not the correct term?” Then, she further said, “It’s like the part in between my legs”. Ms C then explained that Mr Loh would repeat the process of moving from the bottom of her thigh to the top of her thigh and that “somehow, his thumb had to just ... be in contact... as though it was an accidental part of the massage”. The brief contact was described as “touch-and-move” and “brush and then rub”, and Ms C said she felt the contact around five times.
[42] My first observation is that Ms C was hesitant about using the word “vagina”. When she did, she used it quite imprecisely to refer to a “part in between the legs”. From her vague answers, it appears unclear whether Ms C’s complaint related to specific contact with the vaginal area, or any other part in between her legs. In this connection, I note that the first charge states that the contact is on the “vulva region”. Therefore, it is not the Prosecution’s case that there was any intrusion into the vagina. That said, based on Ms C’s use of “vagina” in relation to the “part in between [her] legs”, I proceed on the basis that the claimed contact was at the vulva region as particularised in the first charge. However, this problem with the identification of where she was touched also arose again in relation to the second charge, and I shall return to discuss this aspect at [74] below.
[43] Despite claiming that she felt the contact around five times, Ms C was unsure whether the alleged contact was merely an “accidental part of the massage” . This is surprising. Ms C said she had suspected that it might be because Mr Loh is “so old and big and clumsy”. I am mindful that Ms C’s perception of whether the contact was accidental is not wholly determinative of whether Mr Loh had intentionally touched Ms C at the vaginal area, and whether he did so knowing it to be likely that he would outrage her modesty. However, Ms C’s testimony is the only direct evidence upon which the Prosecution had relied on to establish the first charge. The fact that even Ms C could not be certain as to whether Mr Loh had touched her accidentally is cause for caution. The question is whether the elements of the first charge can be safely inferred from Ms C’s narrative.
[44] One possible inference from Ms C’s narrative is that Mr Loh intentionally touched her at the vaginal area under the guise of giving her a massage. However, an equally plausible inference is that Mr Loh was genuinely massaging Ms C’s legs but accidentally brushed against Ms C at the vaginal area when he was massaging Ms C’s thighs. The latter inference is not an unreasonable one and is consistent with the manner of the massage as described by Ms C. Ms C testified that Mr Loh was pressing his fingers on her thighs and moving his hands from the bottom to the top of her thighs. In so doing, it is possible that his thumb could have accidentally come into brief contact with Ms C’s vaginal area, particularly when his hands were massaging Ms C’s upper thighs. This is consistent with Ms C’s testimony that only his thumb came into contact with her vaginal area, while the rest of his fingers remained on her thighs. The repeated motion of the massage (ie from the bottom to the top of Ms C’s thighs) could have also explained the repetitive brief contact with Ms C’s vaginal area. It bears reminding that it is a little unclear from Ms C’s evidence which part in between her legs she was touched. I should also add that the massage took place over tights which Ms C was wearing. As discussed at [78] below, the “stretchable fabric” might have resulted in Ms C’s impression of pressure being applied at the vaginal area.
[45] With two equally reasonable inferences that can be drawn from Ms C’s description of the incident, with respect, the District Judge’s reliance on Ms C’s testimony in support of the first charge is of concern. As I will go on to elaborate, the difficulties I have with Ms C’s testimony are further exacerbated by the numerous inconsistencies between Ms C’s testimony and her contemporaneous communications with Ms W, Ms Eng and Mr A, as well as her parents’ testimonies.
Inconsistencies between Ms C’s testimony and the contemporaneous communications
[46] Contrary to the District Judge’s finding at [14] above, I am of the view that Ms C’s near-contemporaneous communications with Ms W, Mr Ang and Ms Eng do not support Ms C’s testimony that she was molested on 24 February 2013. Indeed, at most, these communications seem to relate to the second charge rather than the first charge.
[47] First, in relation to Ms C’s WhatsApp message to Ms W (see [14(a)] above), the date of the WhatsApp message is 17 March 2013, which is two days after the date of alleged offence in the second charge (ie, 15 March 2013). As a matter of chronology, it is unclear whether Ms C’s complaint to Ms W was made with specific reference to Mr Loh’s actions in relation to the first charge. The timing of her message suggests that it would have been made in relation to the second incident. As an aside, I note that the original date for the second charge was 17 March 2013, and this message would have been even more closely tied to that occasion. Moreover, the content of her message, ie, “I rily [sic] don’t like it when he massages, feels like he’s molesting me or smth, kept rubbing my groin”, is ambiguous. There is no clear reference in her message to Ms W that supports her testimony that she was describing an earlier occasion of molest.
[48] Second, turning to Ms C’s text conversation with Mr A, her good friend and senior in junior college, on 30 March 2013, the context of the conversation was that Mr A had earlier revealed to Ms C that he was planning to “come out” about his homosexual orientation. Ms C felt a reciprocal desire to share about something she had been keeping from him and therefore told Mr A “I think Mr. Loh molested me, idk ... Like I asked [Ms W] and she said that she felt the same thing but she didn’t tell anyone”. When Mr A inquired more about Mr Loh’s acts of molestation, Ms C said “it’s always like in a room alone, then I told him to stop but he went like just relax”, and that Mr Loh “kept rubbing [her] groin until [she] got that weird feeling. Mr A then encouraged Ms C to confront the matter, to which she replied “I wanted to tell [Ms Eng] but I nvr got to see her then quite weird to tell her that her coach’s like sick ... I won’t dare ... I’m gna be another [Ms W]”. Mr A then sought to convince Ms C to inform Ms Eng and said “[d]o it, or I’ll ask for you”.
[49] Ms C’s description of the molest to Mr A, that it occurred in a room and that he kept rubbing her groin until she “got that weird feeling”, were clear references to the allegations in the second charge rather than in the first charge. It does not support Ms C’s testimony in relation to the first charge in which she alleged that Mr Loh molested her in a public area beside the spectator’s stand, in a “touch-and-move” and “brush and rub” manner. For completeness, Ms C mentioned to Mr A that “it’s always like in a room alone” and that “it kinda got worse, like first few times he just touched”. Admittedly, these messages appear to refer to previous acts of molest. However, the messages suggest that any previous act of molest happened in a room while she was alone with Mr Loh. The messages do not gel with the evidence she gave in respect of the first charge.
[50] Furthermore, the insinuation from these messages is that Mr Loh had molested Ms C on many previous occasions, and that it was a pattern for Mr Loh to molest her while she was alone in a room with him. These aspects are inconsistent with Ms C’s testimony that she was molested on only two occasions, one of which occurred in the equipment room. As will be seen below, Ms C’s communications tended not to be consistent with her testimony (including her account for the second charge). I am mindful that the informal communications between friends should be considered in context, and to allow for a degree of inconsistencies within Ms C’s testimony. However, foreshadowing what is to come, in my view, a line has been crossed, and the internal inconsistencies and problematic aspects of her evidence as revealed by these messages tip Ms C’s testimony into the unsatisfactory realm.
[51] Reading Ms C and Mr A’s communications in totality, I agree with Mr Loh that after Mr A shared with Ms C that he was homosexual, it appears that Ms C was prompted to reciprocate and share an equally important secret. She may have then exaggerated her discomfort over Mr Loh’s massages and accentuated her vulnerability in an attempt to match the weight of Mr A’s secret. This context undermines the reliability of the contents of the communications with Mr A.
[52] I turn to Ms C’s communications with Ms Eng on 2 June 2016. Again, I first set out the context of this set of communications. After Ms C’s exchange with Mr A on 30 March 2013, Ms C testified that she was taken by surprise when Ms Eng approached her at the National Schools Championship 2013 and queried “[Mr A] says you have something to tell me”. She told Ms Eng that “Mr Loh massaged me until I [felt] very uncomfortable”. When Ms Eng enquired when this had happened, Ms C says she told Ms Eng “whenever I train with him alone”. When Ms Eng asked about where Mr Loh touched her, Ms C said “well, my legs” and did not give any more explicit details. Ms C said that Ms Eng defended Mr Loh and suggested that the contact had likely been “not on purpose” and that maybe it was because Mr Loh was “so old that he doesn’t understand what the comfort level of a massage should be”. Ms C did not proceed to disclosure further details on that occasion as she perceived Ms Eng’s apparent defensiveness in issues relating to Mr Loh and because of the long-shared personal history between the two. However, it is worth highlighting that in March 2013, despite being asked specifically about the matter by Ms Eng, Ms C did not disclose any contact by Mr Loh at the vaginal area. Instead, she spoke only about being uncomfortable with the massages on her legs, which would be consistent with Mr Loh’s version of having given “rub down” sessions to her.
[53] Three years later, on 2 June 2016, at 3.52pm, Ms C texted Ms Eng to give a more detailed account of what had transpired because she was concerned that a new batch of promising female trainees would be sent to Mr Loh for training. An extract of the parties’ exchange is set out below:
[54] As evident from the above, Ms C’s main complaint to Ms Eng clearly pertained to the allegations in the second charge, and not the first charge. Indeed, a closer reading of Ms C’s last message in the exchange above suggests that Mr Loh massaged her calves on the first individual training, her upper thighs on the second individual training (presumably when the alleged first offence occurred) and only touched her vaginal area on the last training. These occasions occurred in the equipment room. On that score, her account of the first incident to Ms Eng also differed materially from that alleged in the first charge as to where Mr Loh touched her, and where it took place. I should also point out that in this exchange, Ms C spoke of three and not four individual training sessions with Mr Loh. The inconsistency in relation to the number of individual training sessions is one which I shall return to below at [66].
[55] Notwithstanding the numerous inconsistencies between Ms C’s testimony and her communications with Ms W, Mr A and Ms Eng as highlighted above, the District Judge relied on these communications in accepting Ms C’s testimony for the first charge. In my view, such reliance is wholly misplaced. For the reasons mentioned above, I am of the view that contrary to the District Judge’s analysis, an analysis of Ms C’s communications with Ms W, Mr A and Ms Eng about Mr Loh’s conduct do not actually lend support to Ms C’s account of the first charge. In fact, to some extent, they undermine the cogency of her evidence.
Inconsistencies between Ms C’s testimony and her parents’ testimony
[56] Next, I am deeply troubled by the contradiction of Ms C’s evidence by her parents. Ms C testified that after the second individual training, she informed her mother that Mr Loh massaged her during their individual training sessions which made her uncomfortable. Ms C further testified that her mother then asked Ms C’s father to accompany her to the alleged third individual training session. However, these aspects of her testimony were flatly contradicted by both her parents’ testimonies.
[57] Ms C’s father testified he brought Ms C to training for the alleged third individual training session because it was raining, and it was an opportunity for him to meet Mr Loh. He further stated that it was not because his wife had asked him to do so after Ms C expressed discomfort. Ms C’s father also testified that he only knew about the allegation of molest after Ms C made the police report in 2016.
[58] Similarly, Ms C’s mother testified that she did not know about any allegation of molest until the night before Ms C made the police report in 2016. She says that she remembered the incident where Ms C had asked her father to accompany her to the tracks, but did not know why Ms C wanted her father to send her. She further testified that Ms C did not say anything else to her. Had she known about the alleged molest, she would have lodged a complaint then, and would not have waited until years later to bring up this case.
[59] Given that both Ms C’s parents testified that they only knew about the allegations of molest before Ms C made the police report in 2016, I am of the view that Ms C’s evidence that she informed her parents about her discomfort with Mr Loh’s massage after the alleged molest in the first charge is unreliable. Had she truly complained to her parents about her discomfort with Mr Loh’s massage on 24 February 2013, it is highly unlikely that both her parents would forget about such a significant complaint. This also bolstered my view that there is no contemporaneous evidence supporting Ms C’s allegation that the alleged molest in the first charge had occurred.
[60] I turn to the District Judge’s treatment of the parents’ evidence. The District Judge did not fault Ms C’s mother for her inability to remember Ms C’s complaints of her discomfort with Mr Loh’s massages, given the effluxion of time between February 2013 and July 2016. Furthermore, the District Judge found that the inconsistencies between Ms C’s testimony and that of her parents showed that all three family members gave their testimonies independently and eschewed from colluding to render accounts of a “picture-perfect” consistency. In other words, without discounting Ms C’s evidence on these aspects, the District Judge also forgave the parents’ fallibility in recall. I digress to remark that unfortunately, in my view, the same leniency has not been extended to many of the Defence witnesses’ evidence on account of the lapse of time. For now, the point to be made is that, had Ms C informed them of her complaint, it is highly unlikely that both parents would have completely forgotten about it. This is especially so when Ms C’s mother testified that she would have lodged the complaint years ago had she known about the alleged molest, which demonstrated how seriously Ms C’s mother would have taken issues pertaining to an outrage of her daughter’s modesty. It seems to me that these are material inconsistencies between the evidence of Ms C, and the testimonies of her parents. Not only do these material inconsistencies affect Ms C’s evidence on the first charge, they also taint her evidence on the second charge. In other words, they affected her overall credibility.
Ms C’s omission to mention the incident in the first charge in the first information report
[61] Moving on, I note that even when Ms C made her complaint to the police in 2016, she did not mention the incident in the first charge at all. The FIR provided that “on the above mentioned date, time and location, my modesty was being outraged”. The date and time of incident was stated to be “01/03/2013 18:00”. Ms C has admitted in cross-examination that this incident referred to that in the second charge which occurred during the fourth individual training session. The matters in the first charge were raised later.
Failure to recall other details of the first charge
[62] Finally, I note that Ms C was also unable to recount several details of the alleged individual training on 24 February 2013. In particular, she could not remember (a) how the individual training was arranged by Mr Loh, (b) whether the training session occurred in the morning or the evening; and (c) whether there had been other individuals present in the stadium. Despite the frequency of the group training sessions, it is noteworthy that it was Ms C’s position that there were only four individual training sessions. While I agree with the Prosecution that given the passage of time, certain leeway should be given to Ms C for not being able to pinpoint the precise date and time of the individual training sessions, the lack of specificity is still relevant in an assessment of Ms C’s testimony.
Conclusion on the first charge
[63] To sum up, not only does Ms C’s account suffer from the lack of specificity on the details of the training on 24 February 2013, it also contains a crucial concession that she did not know if Mr Loh’s contact with the vaginal area was an “accidental part of the massage”. In fact, Ms C was not entirely clear where she was touched. Also, Ms C did not specifically raise the incident with Ms W, Mr A or Ms Eng. Indeed, her own messages to them are inconsistent with her account. Ms C claimed to have expressed her discomfort to her parents, and that was why her father accompanied her to the third training session. However, her testimony is not supported by either of her parents. Even if I were to take Ms C’s evidence at its highest, there remains a reasonable doubt as to whether Mr Loh had intentionally touched Ms C at the vulva region over her tights, knowing it to be likely that he would outrage Ms C’s modesty. Therefore, it is plainly wrong for the District Judge to rely on her account to convict Mr Loh of the first charge.
Analysis of Ms C’s evidence for the second charge
[64] Unlike the first charge, if Ms C’s account for the second charge were to be accepted, there is no difficulty inferring that the elements under s 354(1) of the Penal Code are established. This is because Ms C testified that Mr Loh’s thumb pressed into her vagina over her tights and continued to rub the area, despite her asking him to stop. However, as I will elaborate below, Ms C’s testimony for the second charge is rife with inherent difficulties, including (a) her change in position in relation to the date of the charge; (b) her inability to recall important details of the second charge; and (c) her conduct after the occurrence of the alleged event.
Ms C’s change in position on the date of the second charge
[65] Initially, Ms C claimed that the second charge occurred on Sunday, 17 March 2013. On the fifth day of trial, Ms C changed her testimony and claimed that the second charge occurred on Friday, 15 March 2013. The District Judge readily accepted Ms C’s explanation that she had erroneously deduced the date of the second charge based on the dates of her WhatsApp chats with Ms W and Mr A. While a victim’s inability to specify precise dates and times is not necessarily fatal to the Prosecution’s case (Tay Wee Kiat at [32]), I am of the view that in this case, how Ms C came to change her position during the trial, and the impact of this change in date on the other aspects of her evidence, shake her credibility. I elaborate.
[66] Originally, Ms C’s firm position was that all the individual training sessions held by Mr Loh were on Sundays because Sundays were the only days when the trainees had no group training. Also, Ms C testified that she was able to identify the date of the second charge as 17 March 2013 with “great accuracy” because she remembered sharing with Ms W about her discomfort “on that day itself”. She also testified that “[she] know[s] there was not one training where [she] was the only one feeling so sicked out by him and not mention it to anyone because [she] knew immediately … Because [she] immediately told [Ms W]” [emphasis added]. She also testified that “[she] spent the day trying to convince herself, to pretend like nothing happened” before she told Ms W that night, ie, the night of 17 March 2013.
[67] Unfortunately, the “about-turn” came about after Mr Loh adduced evidence that he was involved in the SPH Schools Relay over the weekend of 16 to 17 March 2013. Such evidence meant that he could not have given Ms C any individual training session on 17 March 2013.
[68] Ms C’s change in date from 17 March 2013 to 15 March 2013 meant that she would have spent three whole days keeping the matter to herself, which contradicted her testimony that she “knew immediately” and “immediately told [Ms W]” that night. Considering Ms C’s initial position that the second charge occurred on 17 March 2013 and her explanation that she informed Ms W immediately that night, it appears to me that at the very least, Ms C had exaggerated her certainty of the date of the second charge and embellished her initial evidence to present a more persuasive case against Mr Loh.
[69] The change of the date meant that the fourth alleged individual training occurred on a Friday instead of a Sunday. After the change of date for the second charge, Ms C conceded she could no longer be sure if all the individual training days fell on Sundays. This cast some doubt over whether any individual training session took place at all, as there were usually group training sessions on all the other days of the week.
[70] Further, this change in position is also material because unlike the routine group training sessions, there were purportedly only four individual training sessions. These should have stood out in her training schedule. As I pointed out above at [54], her evidence with regards these individual training sessions is also weakened by the WhatsApp message to Ms Eng (see [14(c)] and [53] above), in which she spoke of only three (and not four) individual training sessions with Mr Loh. I also refer to my discussion at [114] below, where the Whatsapp messages exchanged with Mr Toh cast some doubt whether Mr Loh invited her for individual training sessions as she claimed (see [6] above).
[71] Based on all these circumstances, Ms C’s change in position as to the date of the second charge cannot be regarded lightly. Certainly, it should not be considered as a mere error of recollection, and the District Judge had been overly lenient in disregarding this shift in her testimony.
Unsatisfactory aspects of Ms C’s account
[72] Having reviewed Ms C’s evidence, I also find Ms C’s recollection of the second charge to be fragmented and incomplete. On one hand, Ms C seems to be able to recall, in remarkable detail, the chronology of the events on 15 March 2013 and her surroundings during the alleged offence. She testified that Mr Loh insisted on giving her a massage, and led her to an equipment room to do so. They had to pass through two doors and an office before getting there. She provided a vivid description of the equipment room, saying that she saw a massage bed that was wide enough for one person, and cages for balls and equipment on the left side of the room. She further testified that her legs were facing the door and her head was facing a wall about three to four metres away, with a wall also on the right side about two metres away, and cages and equipment on the left side about three to four metres away.
[73] In view of Ms C’s allegation in the first charge, Ms C’s version that Mr Loh was able to persuade her to proceed with him to the equipment room for a massage in a private area is not, in my view, entirely persuasive. Be that as it may, more importantly, I am troubled by Ms C’s inability to recall other crucial facts in relation to the incident, including the act of molest itself. Not only was Ms C unable to remember (a) the time of the training for the second charge; (b) whether she went to the training after work; and (c) her mode of transport to the training, she was unable to even remember whether the training was in the morning or evening. At first, she testified that she went with Mr Loh for dinner at Han’s after the training but subsequently said that “[she] really could not remember whether it was lunch or dinner”. Given that Ms C had based her recollection off “mental images”, one would expect her to be at least able to recall whether the sky was bright or dark when she went for a meal with Mr Loh after the alleged offence. It was not until well into cross-examination that she stated that it should have been around 7.30pm – when the sky was getting dark – that they went out for dinner.
[74] More importantly, I was disturbed by Ms C’s inability to describe where exactly she was touched by Mr Loh. In her examination-in-chief, she referred to the “vagina”, and explained that it was the part in between her thighs and her groin (see [7(d)] above). Once again, like the first charge, it is not the Prosecution’s case that there was any intrusion into the vagina. Like the first charge, the second charge concerns contact with the vulva region over her tights (see [42] above).
[75] Returning to Ms C’s evidence, even when she was given a doll to demonstrate the exact part of her vagina that she claimed Mr Loh touched, she was unable to point to the exact part she was touched. When asked whether Mr Loh’s thumbs reached the opening of her vagina, her response was “[m]ost likely, yes” and that “until now, [she] also don’t know”. When pressed further on whether the thumb reached her clitoris, her answer was “it must have reached” and “or shall I just say yes, it did reach”. Her qualified answers suggest that she was unsure about where exactly Mr Loh touched her, even though she testified that Mr Loh touched her vagina for 10 to 15 seconds on this occasion and caused her to experience an involuntary orgasm. In this regard, I should add that Ms C’s inaccurate references to being touched on the “groin” in WhatsApp messages with Ms W and Mr A (see [47] and [48] above) added to the unsatisfactory state of her evidence.
[76] The District Judge found no reason to fault Ms C for what he described as an “idiosyncratic” account from her. He found that Ms C is “academically brilliant but sexually naive”. He observed that she is an “observant Christian” who attended “convent schools”. He noted that she was “brought up in a conservative and heavily religiously observant background”. In my view, Ms C’s sexual naivety and conservative upbringing are not sufficient reasons, in themselves, to justify her inability to describe more accurately where she was touched, especially given the serious nature of the second charge. I accept that Ms C was sexually inexperienced. That said, the District Judge should have given more weight to the fact that Ms C was not, by any stretch of the imagination, a young ignorant child. She had completed her A-level examinations at a good junior college. She had studied the anatomy of the female reproductive system in biology classes in school. As the District Judge acknowledged, she secured a place at the medical faculty in a local university, before deciding to pursue studies in a different professional discipline. By the time of the trial, she was in her twenties. Even if Ms C could not name the anatomical parts intruded upon with accuracy, with the aid of a doll, she should have been able to point out where she was violated in relation to the second charge.
[77] I turn to another aspect of Ms C’s account which I found extremely disconcerting. Initially, Ms C did not attribute the “weird feeling” she experienced during the alleged offence in the second charge as an “orgasm”. It was Mr A who suggested to her that what she had experienced was an “orgasm”. Thereafter, Ms C adopted this as part of her narrative. The District Judge reasoned that it was because of Ms C’s inexperience that she required Mr A to explain to her that she had experienced an orgasm – a known physiological reaction. However, the Prosecution concedes that it is not their case that what she experienced was physiologically an “orgasm” or that her body was actually moving during the incident. Their submission is that her description shows the intensity of her experience, provided “depth of detail”, and “bears the ring of truth”. Reluctantly, I disagree with the Prosecution. Like her inaccurate references to various anatomical terms, including “vagina”, I am not persuaded that Ms C used the word “orgasm” with true appreciation of its meaning. Her loose use of the word seems to be, in my view, a form of embellishment. The fact that she attributed the “weird feeling” to an “orgasm” after being prompted by Mr A also suggests, as Mr Loh argues (as set out in [28] above), that her communications with Mr A could have fostered an “echo chamber” which amplified her pre-existing beliefs (mistaken) that she had been molested.
[78] To round off, Ms C claims that she was wearing tights at the material time. The District Judge explained that “the stretchable fabric of [Ms C’s] tights would make it difficult to pin-point exactly where the pressure was being exerted, as the stretch of the fabric would tend to diffuse rubbing and touching sensations”. However, by that same reasoning, it is equally plausible that Mr Loh was simply giving Ms C an innocent massage on her thighs and the “stretchable fabric of her tights” caused Ms C to feel pressure being exerted on her vaginal area. This, as Mr Loh surmises, might have led to misunderstanding on her part.
[79] For completeness, in Public Prosecutor v GCK and another matter [2020] 1 SLR 486 (“GCK”), the Court of Appeal cautioned against making generalisations about the victim’s memories of the offence because “an individual’s capacity for observation and memory recall may not always lie on a continuum even when the account in question concerns events occurring within the same episode” (GCK at [113]). I am mindful of this and appreciate that victims of sexual offence may not remember every aspect of their traumatic experience and that alone does not undermine the credibility of their testimony. However, where the victim’s testimony forms the sole basis of the Prosecution’s case, the lack of specificity on important details of the offence may still be relevant in determining whether the Prosecution has proved its case beyond a reasonable doubt.
Ms C’s immediate conduct after the alleged offence in the second charge
[80] I now turn to the subsequent conduct of Ms C. Immediately after the alleged incident on 15 March 2013, Ms C said that she felt disgusted, and that she cried in private. But after that, she composed herself, and went out for a meal with Mr Loh. Then, at 9.24pm, Ms C posted on her Twitter account: “Prettiest crescent moon so many stars in the sky :)”. One “Iggy” replied to her post and asked her how her timed trial was, to which she responded, “surprisingly easy only 80 x 3 hehehe”, followed by “I got lucky :D”. The usage of smiley emoticons and the tone of the post and the messages indicate that Ms C was in a jovial mood at the material time when she posted them. Ms C admitted during cross-examination that her messages sounded jovial, but she insisted that “deep down” she was not feeling that way.
[81] The District Judge found that Ms C’s apparent normalcy after the second charge did not undermine her testimony, reasoning that different victims may react differently to sexual offences. He further found that Ms C wished to “cast aside gross things” and focus on “positive aspects of life”, which is consistent with the reaction of a victim who is seeking to forget or come to terms with the sexual offence committed against her.
[82] While I agree that a victim of sexual crimes cannot be straitjacketed into an expectation that he or she must act or react in a certain manner (GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 at [20]), this does not obviate the need of the court to examine the internal consistency of the victim’s testimony, especially when the victim’s post-offence behaviours appear clearly inconsistent with the gravity of the alleged offence.
[83] In the present case, I am of the view that Ms C has not provided a sufficient explanation for her seemingly jovial mood merely hours after the alleged molest in the second charge had occurred, especially when she testified that it was an egregious act and she had purportedly experienced an involuntary orgasm. When asked how she could still be in the mood to admire the moon and the stars, Ms C’s response was: “I was like, why would I post something like that on the day itself but maybe I was like trying to distract myself or something, I really don’t know” [emphasis added]. She further explained that “maybe [she] just wanted to cast aside the gross thing and focus on the positive aspects of life” [emphasis added].
[84] It is clear from Ms C’s uncertain answers that she could not remember or explain why she could be in the mood to post such messages. Ms C’s explanations that she was trying to “distract [herself]” and focus on the positive aspects of life” are qualified by the term “maybe”, which indicates that these explanations are merely afterthoughts or ex post facto rationalisations of the Twitter post. Furthermore, as I discussed at [66] above, Ms C testified that she was feeling so “sicked out” that she immediately confided in Ms W on the night of the second charge. This was her evidence before the change of date of the second charge from 17 to 15 March 2013. For present purposes, what I am concerned about is that Ms C’s account of her state of mind that made her want to confide in Ms W immediately after the second charge is somewhat contradictory to her explanations with regards the Twitter post.
[85] In all these circumstances, it seems to me that the District Judge was too ready to accept Ms C’s explanations, and as a result, failed to give weight to the objective evidence of Ms C’s state of mind at the relevant time.
Conclusion on the second charge
[86] To sum up, Ms C’s sudden shift in position on the date of the second charge in the middle of the trial affected her previous stance that all the individual training sessions were held on Sundays, which once again undermined her intrinsic consistency. Her inability to recall material details of the second charge and to more accurately describe the exact part of her body that Mr Loh had allegedly touched also affect the cogency of her account.
[87] While I agree with the District Judge that there is no reason for Ms C to fabricate her near-contemporaneous WhatsApp messages with Ms W, Mr A and Ms Eng, the exchanges must be treated with caution. As I pointed out at [50], [54] and [75] above, Ms C’s messages contain inconsistencies with her version in court about the events. She had also exaggerated aspects of the events, especially to Mr A. Even in court, her account of where she was touched has been unclear, and her account that she allegedly experienced an involuntary orgasm from the violation of her body seemed to be an embellishment (see [77]). Taken together with her apparent state of mind hours after the alleged offence, I am of the view that the District Judge’s reliance on Ms C’s evidence for the second charge is misplaced.
Conclusion on Ms C’s evidence
[89] It should be noted that the “unusually convincing” standard is not a “test”, but rather, a heuristic tool in determining whether the evidence of an uncorroborated witness is sufficient in itself to secure a conviction (GCK at [91]). A complainant’s testimony would be “unusually convincing” if the testimony, when weighed against the overall backdrop of the available facts and circumstances, contains the ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused” (Haliffie bin Marnat v Public Prosecutor and other appeals [2016] 5 SLR 636 at [28]). In assessing whether a witness’s testimony meets the “unusually convincing” standard, the court must consider the totality of the evidence, including the Defence’s case (GCK at [144]).
[90] That said, the ultimate inquiry that the court has to make is whether the case against an accused has been proved by the Prosecution beyond a reasonable doubt (GCK at [91]). The Court of Appeal at [145], [149(e)] and [149(f)] of GCK held that:
[91] I have taken pains to elaborate on these legal principles because I want to emphasise that where there are internal flaws in the Prosecution’s case that cast a reasonable doubt as to the accused’s guilt, the weaknesses in the Defence’s case cannot ordinarily act as a gap-filling device to supplement the Prosecution’s case (see [149(f)] of GCK). I am of the view that the present case is one such instance. As I discussed above, I find that there are inherent weaknesses in Ms C’s testimony in relation to the first and second charges as follows:
(a) For the first charge, Ms C’s testimony was inconsistent with her communications with Ms W, Mr A and Ms Eng and with her parents’ testimonies. This undermined the intrinsic and extrinsic consistency of her account. More importantly, Ms C’s testimony is not sufficient, in itself, to establish the elements of the offence especially when she admitted that Mr Loh’s acts could have been accidental.
(b) For the second charge, Ms C’s sudden change in position on the date of the second charge undermined the intrinsic consistency of her testimony. Her inability to recall material details of the second charge and to describe the exact part of her vaginal area that Mr Loh has allegedly touched, as well as her apparent state of mind after the alleged offence, also affect the credibility of her account. The near contemporaneous exchanges with Ms W and Mr A should be treated with caution.
[92] As explained above, I do not agree with the reasons of the District Judge explaining away these material internal and external inconsistencies and disregarding the obviously unsatisfactory aspects of her evidence. With respect, it is plainly wrong, and against the weight of the evidence, for the District Judge to have relied on Ms C’s evidence to convict Mr Loh of the first and second charges. In accordance with the framework set out above, after I analyse certain aspects of the Defence’s case and evaluate the overall circumstances of the case, I will return to consider the issue whether Ms C should be treated as an “unusually convincing witness” at [143] and [148] below.
Issue 2: Whether Mr Loh has proved his alibi defences and whether two of his accounts amounted to Lucas Lies
Burden and standard of proof for defence of alibi
[93] Before turning to consider the merits of Mr Loh’s alibi defences, I first address the preliminary issue of the burden and standard of proof for the defence of alibi.

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Loh Siang Piow (alias Loh Chan Pew) v Public Prosecutor

Laws this judgment relies on

Grounds of decision

Introduction

Facts

Background facts

The Prosecution’s case

The Defence’s case

Decision below

The parties’ cases on appeal

The appellant’s arguments

The Prosecution’s arguments

Issues on appeal

The appellate court’s role

Issue 1: Whether the District Judge erred in accepting Ms C’s evidence

Analysis of Ms C’s evidence for the first charge

Inconsistencies between Ms C’s testimony and the contemporaneous communications

Inconsistencies between Ms C’s testimony and her parents’ testimony

Ms C’s omission to mention the incident in the first charge in the first information report

Failure to recall other details of the first charge

Conclusion on the first charge

Analysis of Ms C’s evidence for the second charge

Ms C’s change in position on the date of the second charge

Unsatisfactory aspects of Ms C’s account

Ms C’s immediate conduct after the alleged offence in the second charge

Conclusion on the second charge

Conclusion on Ms C’s evidence

Issue 2: Whether Mr Loh has proved his alibi defences and whether two of his accounts amounted to Lucas Lies

Burden and standard of proof for defence of alibi