Skip to content
laws.sgby aturio
Grounds publishedDecided 20 Jul 2015
Contents

High Court

Winston Lee Siew Boon v Public Prosecutor

Feedback & support

[2015] SGHC 186Case no. Magistrate's Appeal No 111 of 2014

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

  1. Chan Seng Onn J:

  2. Introduction

  3. [1] After claiming trial, the appellant, Dr Winston Lee Siew Boon, was convicted on two counts of using criminal force on the complainant with the intention to outrage the modesty of the complainant under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) and sentenced to a global term of ten months’ imprisonment. The two charges stated that the appellant had inserted his hand into the complainant’s left brassiere cup and touched her left breast and nipple on two different occasions. The first occasion was on 8 June 2011 (“the 8 June Incident”) and the second was on 30 October 2011 (“the 30 October Incident”). The charge for the 30 October Incident also stated that the appellant had repeated his act of inserting his hand into the complainant’s left brassiere cup to touch her left breast and nipple. Both incidents occurred at Thong Hoe Clinic, Block 151 Bukit Batok Street 11, #01-252.

  4. [2] The appellant now appeals against both his conviction and sentence.

  5. Background to the appeal

  6. [3] The appellant, who was aged 67 at the time of the offences, was a general practitioner (“GP”) running his own clinic. He had been operating this clinic since 1973.

  7. [4] The complainant was a 34 year-old female at the time of the 30 October Incident. In 2011, she was a Clinical Specialist Associate with [G] Pte Ltd selling surgical devices to clinics and hospitals.

  8. [5] It is undisputed that the complainant had consulted the appellant on four occasions: 8 June, 27 June, 10 July and 30 October 2011.

  9. The trial below

  10. [6] Much of the arguments on appeal focus on the alleged events of both incidents. It is therefore useful to set out the complainant’s and the appellant’s respective version of events at trial before going into the decision of the trial judge.

  11. Complainant’s version of events

  12. The 8 June Incident

  13. [7] According to the complainant, she visited the appellant’s clinic for the first time on 8 June 2011 in order to have a Human Immunodeficiency Virus (“HIV”) blood test conducted. As her regular GP was not open that day, the complainant went to the appellant’s clinic since it was near her house.

  14. [8] Upon entering the consultation room, the complainant informed the appellant that she wanted a HIV test. The appellant then asked if there was a particular reason for wanting the test. She informed him that her boyfriend had multiple sex partners before her and she just wanted to be safe. The appellant proceeded to ask a bit more about the complainant’s background. The complainant told the appellant that she was in the medical industry selling surgical devices and a conversation followed. After this the appellant drew blood from the complainant for the HIV test.

  15. [9] Thereafter, the complainant complained of “nausea and stomach wind” and the appellant instructed her to lie down on the treatment bed in the consultation room. She was wearing a normal fitting T-shirt and a pair of shorts, about 5 inches above her knee. While she was lying on the treatment bed, her T-shirt was lifted up. She could not remember who lifted it up. While the appellant was standing at the side of the bed on her right, checking her stomach for wind using his two hands, she informed him that she had a slight chest pain which she suggested could be due to over-exercise. When the complainant asked the appellant if she could continue exercising, the appellant then said, “Yes, you can as long as…” and at the same time, he slid his right hand underneath her T-shirt and from the top of her left brassiere, he further slid his hand in and touched her left breast, and then continued by saying, “you don’t get chest pain here”. The complainant described the touch as very fast, for one second and as a squeezing of the whole breast including the nipple. She was wearing a three-quarter cup bra at that time.

  16. [10] After this, the appellant pulled his hand out from her T-shirt and the complainant got off the bed and sat on the consultation chair. The appellant could not recall what happened after that. The entire consultation lasted about 50 minutes.

  17. [11] To a question from the court on whether the complainant felt that she was being molested when her breast was squeezed, she replied, “No. He gave me the feeling like he was trying to tell me where my heart is.” She did not make a police report at that time because she thought that it was an appropriate way or the correct way to be touched since she had complained of chest pain. After the 8 June Incident, the complainant had a good impression of the appellant since she found him friendly and chatty and he gave good advice.

  18. The 30 October Incident

  19. [12] After the 8 June Incident, the complainant visited the appellant’s clinic a further three times, the last being on 30 October 2011. On 30 October 2011, the complainant had a sore throat and was feeling unwell. The complainant was again wearing a normal fitting T-shirt and a pair of shorts, about 5 inches above the knee.

  20. [13] Upon entering the consultation room, the appellant greeted the complainant and they engaged in a conversation. During this conversation, the complainant informed the appellant that she was going to resign from her current company and join another company selling “fillers”, an equivalent of Botox. The complainant had asked the appellant for his opinion on “fillers” and whether he was using it. The appellant replied no, explaining that he was not an aesthetic doctor. At the same time this was happening, the appellant was auscultating the complainant on her chest and back underneath her T-shirt.

  21. [14] After the examination, the complainant asked the appellant if she could continue to exercise, to which the latter replied that she should be able to. The complainant then explained that she was exercising for weight management. The appellant then asked her to stand on the weighing scale in the consultation room. After her weight was taken, the complainant stepped down from the scale.

  22. [15] The appellant told her to lift up her T-shirt to reveal her abdomen. The appellant touched her abdomen and told her she was not fat. The complainant continued to ask if she could exercise and the appellant said “yes, you can, and as long as…”, then he said, “sorry” and then put his right hand underneath her shirt, moved his hand towards the top of her chest, and from the top of her brassiere, he further slid his hand into her brassiere and touched her left breast. The complainant described the touch as a squeeze of the whole breast, including the nipple, which lasted less than a second.

  23. [16] After this, the appellant pulled out his hand, repeated the sentence, “as long as…” and “sorry, ah”, and repeated his action by touching her left breast again. The complainant was holding on to her T-shirt during that time. The appellant had completed his sentence in both instances by saying, “you do not get chest pain here” while squeezing her left breast. On that day, she was also wearing a three-quarter cup bra.

  24. [17] The complainant was shocked and confused after the first time her breast was touched. She had no reaction and just froze there, not even pulling down her T-shirt. She explained that she did not pull down her T-shirt before the second touch because she was not quick enough to react. After the second touch, she did pull down her T-shirt. She was still shocked and confused as she felt violated but was not sure if the touching of her breast was necessary. The consultation lasted ten minutes with no one else being present in the room. The complainant then left the consultation room to make payment.

  25. [18] When her name was called by the nurse to make payment, she gave a 50-dollar note to the nurse. The complainant could not remember how much she had to pay. At the same time, she also asked the nurse if the dentist that was sharing the clinic with the appellant offered any Botox treatment. She left the clinic without hearing the nurse’s reply and without getting her change. On the way back home, the nurse had to call the complainant to come back to collect the change. She walked back to the clinic to collect her change.

  26. [19] According to the complainant, she had asked the nurse the question on Botox even when she was shocked and confused because while waiting to see the appellant, she had intended to seek his opinion about her new company and the product she was going to sell and also about the dentist who shared the clinic with him. This had been at the top of her mind.

  27. After the two incidents

  28. [20] On the same day as the 30 October Incident, the complainant texted her then boss, Susan Quek (“Susan”). The complainant testified that she had texted her boss, “I think I’m molested by my GP” and also, “Do you need to touch the breast when telling not to get chest pain there?”. The reply from Susan was “of course not” and “why don’t you check with a female doctor?”. The complainant then texted Dr Chia Yin Nin (“Dr Chia”) from KK Women’s and Children’s Hospital, asking “do you need to touch the breast to tell a patient not to get chest pain there”. Dr Chia replied in the negative. At the time of trial, these text messages could not be retrieved as the complainant no longer had them.

  29. [21] The complainant lodged a police report on 31 October 2011. She explained that she did not make a police report on 30 October 2011 itself because she was still confused and “wanted to make sure that [she] did not make a wrong judgment”. The complainant also said that it was only after the 30 October Incident that she realised that the appellant had used the excuse of showing her where the chest pain would be to touch her breast during the 8 June Incident.

  30. [22] In September 2012, the complainant started seeing Dr Joshua Kua (“Dr Kua”), a psychiatrist from Raffles Hospital. This was because her job required her to visit doctors in their clinics and those clinics had setups similar to the appellant’s clinic which caused the complainant to keep having flashbacks of the incidents. This made her unable to communicate properly with male doctors, thereby affecting her performance during work. She could not recall if she had told Dr Kua about both incidents but she was sure she told him of the 30 October Incident. The complainant saw Dr Kua a total of three times, one each in September, October and November 2012. She stopped seeing Dr Kua thereafter as she changed job and found it very expensive to attend the sessions.

  31. [23] The complainant’s relationship with her children was also affected. She kept getting agitated and angry very easily at almost everything, including her children. She kept blaming herself “for being retarded” for not realising during the 8 June Incident that she had been violated by the appellant but had only done so after the incident happened again during the 30 October Incident.

  32. Appellant’s version of events

  33. [24] The appellant did not deny the complainant’s version of events in its entirety. He accepted that the complainant had consulted him at his clinic a total of four times. However, in his oral testimony in court, he gave a version of both the 8 June and 30 October Incidents that differed in material respects from that of the complainant.

  34. The 8 June Incident

  35. [25] According to the appellant, when the complainant entered the consultation room on 8 June 2011, he asked her what was wrong with her and she replied that she had nausea and flatulence. He then took her blood pressure and temperature. He asked her to lie down on the treatment bed and lift up her “blouse” slightly to expose the mid-portion of her abdomen. He then palpated and auscultated the complainant’s abdomen. After this he told her to return to her seat in the consultation room and told her that she had gastroenteritis, ie, stomach flu.

  36. [26] As the appellant was writing down the complaints and medication to be given on the treatment card, the complainant told him that she wanted a test for HIV. This surprised the appellant since in his 40 years of practice, no female had ever asked for a HIV test on the first consultation. He then asked her why. She explained that the man she was seeing was also seeing other women. The appellant advised her to take the HIV test and Venereal Disease Research Laboratory (“VDRL”) test. The complainant agreed. The appellant then proceeded to take blood from her left arm.

  37. [27] The appellant also counselled the complainant on safe sex. The complainant then asked the appellant for “advice regarding exercise as a way of keeping fit and maintaining her weight”. He answered by explaining that exercise was a good thing but that she had to start slowly and increase both the duration and intensity of the exercise. The complainant asked what would happen to her if she “overstrain [sic] her heart”. She also asked how she would know if she strained her heart. The appellant placed his right fist on his own sternum, slightly to the left over his shirt to show the site and nature of his pain. The complainant asked where exactly the pain would be. The appellant then placed his clenched right fist on the complainant’s sternum, slightly to the left and on top of her clothes.

  38. [28] After this, the complainant asked the appellant whether he did Botox. He asked her why and she said that there was a Botox poster at the waiting area. He told her that the poster belonged to his tenant, Q&M Dental Surgery. She then told him that she was working for a company called [G] Pte Ltd selling mainly surgical implants and appliances. She also mentioned that she might be thinking of switching to selling Botox. The appellant wrote the company’s name on the complainant’s treatment card.

  39. [29] The appellant thus denied that the complainant had made any complaints about chest pain while lying on the treatment bed and that he had slipped his right hand underneath her T-shirt and squeezed her left breast and nipple on 8 June 2011.

  40. The 30 October Incident

  41. [30] According to the appellant, the complainant entered the consultation room and upon being asked, told the appellant that she had a sore throat and cough. The appellant took her blood pressure and temperature. He then auscultated her chest and back and also looked at her throat. He told her that she had upper respiratory tract infection and he would prescribe antibiotics. The complainant then said she was fat and wanted to continue exercising. The appellant asked her to step on the weighing scale so he could take her weight. After she stepped off the scale, the appellant asked her to lift up her blouse slightly over her mid-abdomen. He did a standard pinch test to measure subcutaneous fat. He did this in order to reassure the complainant that she was not fat since she was always claiming otherwise.

  42. [31] After the appellant told the complainant that she was not fat, he asked her to go back to her seat. Subsequently, the complainant asked for advice on whether she should exercise when she was not feeling well. The appellant told her no, and that it was not wise because “sometimes in a flu… the virus can go to the heart”. He also advised her to take it easy and only go back to her normal exercise routine when she was perfectly well.

  43. [32] The complainant then asked what would happen if she over-exercised too early. The appellant told her that she would experience chest pain if she strained her heart. The appellant placed his right fist on his own sternum, slightly to the left to show the complainant where the pain would be. The complainant then asked for the actual site and nature of the pain. The appellant placed his clenched right fist on her sternum, slightly to the left and told her that she would feel a crushing pain there. She acknowledged the appellant’s advice, stood up and walked towards the door.

  44. [33] The complainant paused at the door before opening it and asked, “Doctor, do you do Botox?” The appellant explained that he did not and the complainant asked why there was a Botox poster in the waiting area. The appellant explained that it belonged to Q&M Dental Surgery. The complainant told the appellant that she was leaving [G] Pte Ltd to sell Botox. The appellant cancelled the name of the company from the treatment card.

  45. [34] After the complainant left the consultation room, the appellant wrote on the treatment card and passed it to Linda Ang (“Linda”), one of his nurses who was waiting at the small window opening at the wall separating the consultation room and the dispensary. The appellant’s evidence was that Linda was waiting there at the material time as she had a query from a patient whom the appellant had seen immediately before the complainant.

  46. [35] The appellant thus denied that he had slipped his hand underneath the complainant’s T-shirt to squeeze her left breast and nipple.

  47. The case for the prosecution

  48. [36] To prove its case, the prosecution relied principally on the complainant’s testimony as stated above (see [7]–[23]). The prosecution also called other witnesses to support its case.

  49. [37] One of the witnesses called by the prosecution was Dr Kua. Dr Kua testified that the complainant first saw him on 19 September 2012 and she told him about being molested by her GP. She had difficulties concentrating on her work and her mind would go blank at times. She told Dr Kua that she had changed job in November 2011 and that she was not doing well with her new job. She also felt angry, especially when seeing male doctors and even felt like punching them during her sales visits. She told Dr Kua of other issues like flashbacks of the incident and that she felt anxious when she read in the newspapers that someone was molested. Dr Kua diagnosed the complainant to be suffering from Post-Traumatic Stress Disorder (“PTSD”) based on the criteria in the Diagnostic and Statistical Manual IV (“DSM IV”). He prescribed anti-depressant medication to the complainant to treat these symptoms. The complainant had seen Dr Kua on two more occasions (3 October 2012 and 27 November 2012) and Dr Kua maintained his diagnosis of PTSD. Dr Kua finally testified that he was aware of the possibility of the complainant malingering or faking her symptoms but he was certain that this was not the case with the complainant. Dr Kua said that the complainant’s emotional display was consistent with someone who had PTSD.

  50. [38] The prosecution also called Susan, who was the complainant’s boss when she was working at [G] Pte Ltd. Susan described the complainant as a very good worker and testified that they had a good working relationship. Susan also testified that she had received a text message from the complainant asking if it was normal for a doctor who examined a patient for cough or flu to touch her breast, to which she replied no. She suggested that the complainant seek another opinion from a doctor who was one of their customers to confirm if what she told the complainant was true. Susan also said that even after the complainant left [G] Pte Ltd, she still met up with the complainant from time to time. She also stated that the complainant appeared to be in her friendly and cheerful self and did not appear to be depressed. The complainant also told Susan that she was happy in her new job and doing very well. The complainant did not tell Susan that she was seeing a psychiatrist or how she was affected by the incidents. However, when they met during work shortly after the text message on 30 October 2011, the complainant did tell Susan that she was traumatised by the incident because she could not believe such a thing would happen to her.

  51. [39] Dr Chia also testified that the complainant did contact her to ask her if it was common for a GP to touch the chest. The complainant told Dr Chia that her GP placed his hand underneath her shirt and touched her chest. Dr Chia informed her that the doctor would usually auscultate the lungs.

  52. [40] The final witness for the prosecution was the Investigating Officer, Sabaran Singh (“IO Sabaran”). IO Sabaran was called for the purpose of adducing a statement made by the appellant to him during the course of investigations (“P21”). According to IO Sabaran, the appellant called him on 30 March 2012 after being subjected to a polygraph test to tell him that he had something else to tell IO Sabaran about the case. As a result, IO Sabaran recorded P21 on 3 April 2012. The defence did not object to the admissibility of the statement. The first paragraph of P21 reads:

  53. IO Sabaran also testified that it was the appellant himself who first brought up, in P21, issues of compensation and the issuance of an apology. The complainant had not asked for any compensation.

  54. The defence

  55. [41] The appellant relies principally on his testimony as described above at [25]–[34] for his defence. Further, the appellant testified that IO Sabaran had deliberately withheld telling him the name of the complainant, the date of the incident and the details of the allegation against him when his first statement was recorded on 4 November 2011 (“P25”). He claimed that IO Sabaran did not provide him with this information during the recording of P25 even when he expressly asked IO Sabaran for it. Linda had to search through 70,000 patient treatment cards to try to find out the identity of the complainant but was unable to do so. The appellant also testified that prior to the recording of P21, there was a discussion between IO Sabaran and himself where the appellant showed IO Sabaran how he had placed his fist on his own sternum before placing it over the complainant’s sternum, ie, slightly to the left and over the clothes.

  56. [42] Linda, who was a part time nurse and receptionist at the clinic, testified for the defence. She had been working with the appellant since 1976. At the time of trial, she was working part time at the clinic. Linda testified that she first knew of the complaint against the appellant when he was asked to go to Jurong Police Division for an interview in relation to a complaint of inappropriate behaviour. Linda said that once the appellant gave her the name of the appellant, she was able to retrieve the treatment card which jogged her memory about the events on 30 October 2011. She testified that she told the appellant that she remembered looking into the consultation room through the small window opening when the complainant was in the consultation room. She had done this because the patient before the complainant wanted to know if she should come back for a review after her medication. She needed to check this information with the appellant. Linda testified that she saw the complainant stepping up onto the weighing scale and then stepping down. After this, she saw the appellant pinching the complainant’s abdomen. They immediately returned to their seats. Linda also heard the complainant asking the appellant about chest pain related to exercise. She then saw the appellant putting a clenched fist on the complainant’s chest, over her clothes, and explaining to her where the pain would come from. Just before leaving the consultation room, the complainant asked the appellant if he did Botox to which the appellant replied in the negative. The appellant also explained that the poster of Botox in the waiting area belonged to the dental practice. Linda testified that before she dispensed the medication, the complainant asked her if the appellant did Botox to which she explained that he did not and that the poster belonged to the dental clinic. According to Linda, the complainant appeared to be smiling and was friendly. She was not flustered at all. Linda dispensed the medication to the complainant and she duly paid and even collected her change. Linda testified that the complainant did not forget to take her change.

  57. [43] The last witness for the defence was Dr Brian Yeo (“Dr Yeo”), a consultant psychiatrist with Brian Yeo Psychiatry Pte Ltd. In preparing his expert opinion, Dr Yeo relied on (a) the transcripts of the trial; (b) Dr Kua’s clinical notes and; (c) the DSM IV. In his opinion, the complainant’s reported behaviour after the alleged 30 October Incident did not seem to display distress. Dr Yeo also stated that the evidence from Susan that she did not notice the complainant to be depressed and that the complainant had been happy in her new job and did not complain about not liking to see male GPs or even her sleeping problem were at variance with the symptoms of PTSD reported by the complainant to Dr Kua. It was Dr Yeo’s opinion that the complainant did not fulfil one of the criteria for the diagnosis of PTSD, that of occupational impairment. Dr Yeo did acknowledge that he did not examine the complainant and that he did not have the benefit of observing and assessing the complainant’s demeanour and psychological signs. He also conceded that patients might tell their psychiatrist things which they may not necessarily tell their friends.

  58. The decision below

  59. [44] The trial judge first directed himself to the applicable law in cases involving sexual misconduct. Citing the cases of Tang Kin Seng v Public Prosecutor [1996] 3 SLR(R) 444 and Public Prosecutor v Mohammed Liton Muhammed Syeed Mallik [2008] 1 SLR(R) 601 (“Liton”), the trial judge noted that evidence of the complainant had to be “unusually convincing” before a conviction could be made out. In assessing the witnesses, the trial judge applied the approach in Farida Begam d/o Mohd Artham v Public Prosecutor [2001] 3 SLR(R) 592 where the trial judge can make a finding on the credibility of a witness based on some or all of the following: (a) demeanour of the witness; (b) the internal consistency (or lack thereof) in the content of the witness’ evidence; and (c) the external consistency (or lack thereof) between the content of the witness’ evidence and the extrinsic evidence (for example, the evidence of other witnesses, documentary evidence or exhibits).

  60. [45] In assessing the demeanour of the complainant, the trial judge noted that the complainant had given evidence in a truthful and straightforward manner. She had to compose herself by first taking a deep breath before narrating her account of the incidents. The trial judge noted that the emotion was real and not contrived. The trial judge found that the complainant had more than given the appellant the benefit of the doubt when she thought that the actions of the appellant on 8 June 2011 were appropriate because she had complained of chest pain. It was only when the appellant did it again on 30 October 2011 that she realised that she had been taken advantage of.

  61. [46] The trial judge also found internal consistency in the complainant’s evidence as to why she did not complain after the 8 June Incident. Her actions after the 30 October Incident where she double checked with Susan and Dr Chia whether it was appropriate for a doctor to touch her breast in the midst of explaining where the chest pain would be before making a police report was consistent with the fact that she was unsure if the touch on 30 October 2011 was necessary and the fact that she had given the appellant the benefit of the doubt with regards to the 8 June Incident.

  62. [47] There was external consistency between the complainant’s evidence and the evidence of Susan, Dr Chia and Dr Kua. Susan and Dr Chia had corroborated the complainant’s evidence that she had checked the appropriateness of the appellant’s actions after the 30 October Incident and before making a police report. Dr Kua’s evidence was consistent with the evidence of the complainant that she had narrated the 30 June Incident to Dr Kua. The trial judge also went on to state that it was not surprising that the complainant did not tell Dr Kua about the 8 June Incident given that the incident which triggered her PTSD symptoms was the 30 October Incident. The complainant had hoped that the symptoms would go away and this explained why she did not seek treatment earlier.

  63. [48] The complainant’s evidence was externally consistent with P21 in so far as the appellant did commit the physical act of touching the complainant’s breast on 30 October 2011 although the appellant claimed it was unintentional. He also found that the complainant did not have any motive to falsely accuse the appellant.

  64. [49] Although observing that the demeanour of the appellant was neutral, the trial judge found that the evidence given by the appellant was internally inconsistent. He noted that the appellant had first claimed that in the recording of P25, IO Sabaran had told him that there was a complaint against him for inappropriate behaviour and that the appellant might have touched the complainant’s breast. Later, he claimed that at the time P21 was recorded, which was some 5 months later, IO Sabaran did not tell him how he had molested the complainant and he was under the impression that he was being accused of inappropriate behaviour and that behaviour was placing his fist on the complainant’s sternum. However, under cross-examination the appellant prevaricated as to whether IO Sabaran had indeed told him, at the time of P25, that the allegation against him involved touching of the breast.

  65. [50] The trial judge also found that there was a lack of external consistency in the appellant’s evidence. First, in P21, the appellant stated that he touched the complainant’s breast and could have touched her nipple but it was not on purpose. In court, the appellant claimed he was referring to the placing of his fist over the complainant’s sternum. The judge found that this did not make logical sense. The court accepted IO Sabaran’s evidence, which was given when IO Sabaran was recalled by the prosecution as a rebuttal witness, that the appellant did not demonstrate to IO Sabaran the alleged act of placing his right fist on his own sternum and then placing his fist on the sternum of the complainant over her clothes.

  66. [51] The credit of the appellant was also impeached by the prosecution under s 157(c) of the Evidence Act (Cap 97, 1997 Rev Ed). The prosecution relied on P25 to show that what the appellant said in court, ie, that IO Sabaran had refused to tell him the date and nature of the allegations against him was clearly contradictory to P25 where it was clearly stated that IO Sabaran had told him the date and nature of the allegations. When confronted with this, the appellant claimed that it did not register in his mind because he was shocked and confused by the allegation. The trial judge did not accept his explanation and found that his response to IO Sabaran’s question, which stated the date and nature of the allegation, was coherent and in detail. The judge did not believe that he was so shocked and confused that this did not register in his mind.

  67. [52] The trial judge found that Linda’s evidence was an afterthought and not worthy of belief. The trial judge observed that she was an evasive witness and that her evidence lacked internal consistency. According to the trial judge, it did not accord with ordinary reasonable human behaviour for Linda to remain standing at the sliding window, leaning forward and looking through for about five to six minutes just waiting for the appellant to finish with the complainant’s consultation. An adverse inference was also drawn against the appellant for failing to mention Linda in his statements.

  68. [53] The trial judge noted that the finding of PTSD would not have a deciding effect on whether the appellant committed the offences. Nevertheless, he went on to make a finding on the issue because such a finding would amount to corroboration of the complainant’s evidence that she did suffer a traumatic event. The trial judge accepted the evidence of Dr Kua and found that the complainant did indeed suffer from PTSD. Dr Kua’s evidence was more reliable given that he had examined the complainant. Furthermore, he was aware of the possibility of the complainant malingering and faking her symptoms. Dr Yeo’s submission that the occupational impairment limb of PTSD was not made out was based mainly on the fact that the complainant did not tell Susan that she was having problems at work. However, Dr Yeo had conceded patients might tell their psychiatrists things that they do not tell their friends. The trial judge then went further to apply the rule in Brown v Dunn [1984] 6 R 67 (“Brown v Dunn”) against the defence for failing to put this fact to the complainant to give her a chance to explain why she did not mention to Susan the things she told Dr Kua. In the light of this failure to recall the complainant, which the trial judge invited counsel for the defence in the trial below to consider, the trial judge applied the rule in Brown v Dunn to prevent the defence from making the submission that the complainant was not suffering from occupational impairment given what the complainant told Susan.

  69. [54] In the light of all his findings, the trial judge concluded that the complainant’s evidence was unusually convincing, reliable and adequately corroborated by other independent evidence. He thus found the appellant guilty on both charges and convicted him accordingly.

  70. [55] On the appropriate sentence, the trial judge noted the relevant aggravating and mitigating factors. He also referred to Public Prosecutor v Chow Yee Sze [2011] 1 SLR 481 (“Chow Yee Sze”) where the benchmark of nine months’ imprisonment and three strokes of the cane was established for an offence under s 354 of the Penal Code which involved intrusion on a victim’s private parts or sexual organs. The trial judge also referred to the case of Public Prosecutor v Ho Ah Hoo Steven [2007] SGDC 162 (“Steven Ho”) in arriving at a sentence of ten months’ and nine months’ imprisonment for the 30 October Incident and 8 June Incident respectively. He also ordered both terms of imprisonment to run concurrently making it a global term of ten months’ imprisonment. As the appellant was above 50 years of age, no caning was ordered.

  71. Issues before the court

  72. [56] On appeal, counsel for the appellant, Mr Davinder Singh SC (“Mr Singh”) raises various arguments to show that the trial judge was in error in finding that the charges against the appellant were proved beyond a reasonable doubt. I will not summarise his arguments, but deal with them in the course of my judgment when I revisit various aspects of the trial judge’s findings. It suffices at this juncture to state the issues which have to be determined in this appeal.

  73. [57] The issues that arise for my determination in this appeal are:

  74. (a) Is the evidence of the complainant unusually convincing such that the charges against the appellant are proved beyond a reasonable doubt?

  75. (b) Is there independent corroboration of the complainant’s evidence?

  76. (c) Does the prosecution have to disclose the complainant’s statements to the police to the defence?

  77. (d) If the charges are proved beyond a reasonable doubt, is the sentence imposed by the trial judge manifestly excessive?

  78. My decision on the appeal against conviction

  79. The threshold for appellate intervention

  80. [58] The grounds for appellate intervention when it comes to findings of fact made by the trial judge are well-established. In Liton, the Court of Appeal (“CA”) explained at [32]–[33]:

  81. [59] Recently, the CA in Public Prosecutor v Muhammad Farid bin Mohd Yusop [2015] 3 SLR 16 made further observations on the threshold of appellate intervention. The CA stated:

  82. [60] In this case, the trial judge’s findings are primarily based on the credibility of the complainant and not on inferences drawn from primary objective facts. This means that I have to assess whether the trial judge’s findings on the credibility of the complainant and the acceptance of her evidence are plainly wrong based on the internal and external consistency of the complainant’s own evidence. Given that this is an appeal against conviction, it has to be shown that the trial judge is plainly wrong in arriving at his conclusion that the prosecution has proved its case against the appellant beyond a reasonable doubt.

  83. Cases involving sexual misconduct and the law on corroboration

  84. [61] The proverbial golden thread which runs throughout the web of our criminal law is the fundamental principle that the prosecution bears the legal burden of establishing the guilt of an accused beyond a reasonable doubt (see Woolmington v The Director of Public Prosecutions [1935] AC 462 at 481; AOF v Public Prosecutor [2012] 3 SLR 34 (“AOF”) at [2]; and XP v Public Prosecutor [2008] 4 SLR 686 (“XP”) at [35]). There is possibly no principle more trite in our law.

  85. [62] When it comes to sexual misconduct cases, which usually involve the word of one person against another, the CA has also provided guidance on the proper approach to be taken before it can be said that the prosecution’s ultimate burden is satisfied. In Liton, the CA said:

  86. [63] In Liton, the CA did not find it necessary to lay down a definitive ruling on the meaning of the expression “unusually convincing” given that the trial judge in that case had implicitly found that corroboration was required. In this respect, the CA also stated that an appellate court will not readily overturn a trial court’s finding that corroboration was or was not required (at [40]). But the one thing that remains clear is that the finding of “unusually convincing” is part of the analysis in determining the final question: has the prosecution’s case been proven beyond a reasonable doubt? This ultimate question, which does not change even in cases involving sexual misconduct, has to be borne in mind when approaching the evidence.

  87. [64] This is also borne out by the CA decision of AOF which states that the requirement of unusually convincing does not change the ultimate rule that the prosecution must prove its case beyond a reasonable doubt (see AOF at [113] citing with approval XP at [31]). The CA expounded on the law as follows:

  88. [65] It is at once apparent that the analysis of whether a witness’ testimony is unusually convincing at the trial level is similar to the analysis that an appellate court engages in when assessing a trial judge’s finding on the credibility of a witness (ie, the assessment of the internal and external consistency of the evidence). The only additional factor that the trial judge assesses is the demeanour of a witness which undoubtedly places him in a more advantageous position. It is because of this that appellate intervention is only warranted to disturb a finding of the trial judge that the witness was unusually convincing if the trial judge is plainly wrong (see [60] above). In this regard, while it has been held that a credible demeanour cannot overcome deficiencies (which include inconsistencies) in the evidence (see XP at [71]), the converse must also be true in that minor or insignificant inconsistencies in the evidence similarly cannot overcome a demeanour which is credible. In other words, where a trial judge bases his findings on, inter alia, the demeanour of a witness, the appellate court has to be satisfied that the inconsistencies and deficiencies, both internal and external, are sufficiently material and significant such that it can be said that the trial judge is plainly wrong in finding the witness unusually convincing and therefore plainly wrong in finding that the prosecution’s case is proven beyond a reasonable doubt. Minor or insignificant inconsistencies will not suffice to meet the threshold required for appellate intervention.

  89. [66] To illustrate this point, in AOF the CA had found various material inconsistencies in the victim’s testimony in relation to alleged sexual acts done on her by her father. These included, inter alia, a vital external inconsistency in the frequency of the alleged rapes found in the victim’s trial testimony, the medical reports and her earlier statements to the police. There were other material internal inconsistencies in the testimony of the victim that the CA pointed out before holding that the victim’s testimony, contrary to what the trial judge found, was not unusually convincing.

  90. [67] In the present case, the trial judge had made an express finding on the demeanour of the witness noting that she had been truthful and straightforward in her testimony. He also stated that he very carefully observed the complainant and was of the opinion that the emotion she displayed was real and not contrived (see [45] above). In the light of this express finding, it is all the more necessary that the internal and external inconsistencies in the complainant’s testimony be shown to be material and significant such that the trial judge can be said to be plainly wrong and appellate intervention is thereby warranted.

  91. [68] Where the evidence of the complainant is not unusually convincing, corroborative evidence would then be required to secure a conviction (Sivakumar s/o Selvarajah v Public Prosecutor [2014] 2 SLR 1142 (“Sivakumar”) at [41], AOF at [173]). This means that if the evidence from the complainant is per se not unusually convincing, the prosecution’s case cannot be said to be proved unless there is sufficient corroborative evidence to help establish the prosecution’s case beyond a reasonable doubt. In Sivakumar, the CA provided the following guidance (at [41]):

  92. [69] This passage clearly establishes a holistic approach to all the evidence before the court to determine if the prosecution’s case is proved beyond a reasonable doubt.

  93. [70] As to what constitutes corroboration, the CA in Sivakumar briefly explained at [42] as follows:

  94. [71] In AOF, the CA had explained principles of corroboration in the local context as follows:

  95. [72] The last passage is of particular relevance. In our law, the approach to corroboration is a liberal one which concentrates on the substance as well as the relevance of the evidence and whether it is supportive or confirmative of the weak evidence it is meant to corroborate (referred to as “liberal corroboration” in AOF). This provides the judge with sufficient flexibility in analysing whether relevant evidence is corroborative. However, the weight attached to corroborative evidence depends ultimately on the factual circumstances and the nature of the evidence. In the usual course, the strongest form of corroboration is independent evidence implicating the accused in a material particular, generally known as Baskerville corroboration. If the corroborative evidence is not of this nature, it may affect the weight attached to the evidence. However, it should also be borne in mind that the ultimate question at the end of the day is whether, in considering all the relevant evidence (including the complainant’s testimony and the liberal corroborative evidence), the prosecution’s case is proved beyond a reasonable doubt.

  96. [73] The entire discussion above can be summarised for the current appeal in the following manner:

  97. (a) The legal burden on the prosecution remains to prove guilt beyond a reasonable doubt. This is the ultimate question that the court has to determine after a holistic examination of all the relevant evidence.

  98. (b) In the absence of corroboration, this burden may be satisfied if the trial court finds the complainant’s evidence to be unusually convincing such that it is safe to convict solely on her evidence. In making this assessment, the trial court assesses the complainant’s credibility by weighing the demeanour of the complainant alongside both the internal and external consistencies found in the complainant’s testimony.

  99. (c) On an appeal against a conviction where the trial judge has found the complainant’s evidence to be unusually convincing, appellate intervention is only warranted where the internal and external inconsistencies of the complainant’s evidence show that the trial judge is plainly wrong in arriving at his conclusion that the evidence of the complainant is unusually convincing. This is because an appellate court does not have the benefit of assessing the demeanour of the complainant, unlike the trial judge.

  100. (d) Even where the evidence of the complainant is not unusually convincing, the legal burden of the prosecution may still be discharged if there is sufficient corroboration. The trial judge should identify which aspect of the evidence is not so convincing before looking for supporting evidence and ask whether, in taking the weak evidence together with the supporting corroborative evidence, he is satisfied as a whole that the prosecution's case is proved beyond a reasonable doubt. In this regard, corroboration is approached in a practical manner. The court looks at the substance and relevance of the evidence to determine if it is supportive or confirmative of the weak evidence which it is meant to corroborate.

  101. (e) As indicated above, the question at the end of the day, after a holistic examination of all the relevant evidence before the court, remains whether the prosecution has proved its case beyond a reasonable doubt.

  102. [74] In the present case, trial judge found that the complainant’s evidence was unusually convincing. In addition, he also found that the complainant’s evidence was adequately corroborated by other independent evidence (which I assume to mean Baskerville corroboration). He then concluded that the prosecution’s case was proved beyond a reasonable doubt. I will similarly begin by assessing the trial judge’s finding that the complainant’s evidence was unusually convincing before considering the trial judge’s findings on corroboration. This will then assist me in determining the question that must ultimately be answered: is the trial judge plainly wrong when he found that the charges against the appellant had been proved beyond a reasonable doubt after having considered all the evidence before him.

  103. [75] At this point it is also pertinent to note that Mr Singh submits that the manner in which the case was run at the trial below requires a holistic assessment of the complainant’s evidence. I must first point out that the assessment of all relevant evidence in determining whether the prosecution’s case is proved beyond a reasonable doubt is not limited only to the complainant’s evidence. A holistic assessment of the evidence must encompass the entirety of the evidence before the trial judge which includes the evidence of the other prosecution witnesses, the appellant and all the other evidence adduced by the defence that had been properly admitted at the trial (see XP at [34] where V K Rajah JA similarly explained the need to consider evidence other than the complainant’s testimony and factual circumstances peculiar to each case).

  104. [76] Mr Singh further submits that if sufficient doubt has arisen in respect of one of the incidents, this taints the entire account of the complainant such that an acquittal for both charges would be in order. This submission is not entirely correct. In general, I agree that in this particular case, given how the trial below was run and the similarity between the complainant’s account of what happened in both incidents (the appellant’s account of what happened in both incidents was also largely similar to each other), if sufficient inconsistency is shown as to one incident, it can taint the entire evidence of the complainant such that it may not be possible to find the complainant’s evidence to be unusually convincing for both incidents. However, that does not end the analysis given that corroborative evidence of one particular incident may be present, which when weighed together with the complainant’s not so convincing account of that incident may well be sufficient to constitute proof beyond a reasonable doubt such that a conviction for that incident is still safe. Further, when there is sufficient corroborative evidence extending to both incidents, it may well be sufficient when taken together with the complainant’s not so convincing account to enable the trial judge to be satisfied that both charges in respect of both incidents have been proved beyond a reasonable doubt. In any event, as will be seen, this difficult position does not arise on the facts of this case.

  105. Is the complainant’s evidence unusually convincing?

  106. Internal consistency of the complainant’s evidence

  107. The 8 June Incident

  108. [77] Mr Singh first submits that there are deficiencies in the evidence of the complainant since she could not remember many details of the 8 June Incident. These include where she was initially seated in the consultation room, whether her temperature was taken, whether the appellant had her treatment card in his hand, whether the appellant suggested that she not only have the HIV test done but also the VDRL test, whether the appellant counselled her on safe sex, from which arm the appellant drew blood for the test and whether the appellant told her of the diagnosis for her stomach complaint. The complainant also could not remember the reasons for consulting the appellant on 27 June and 10 July, which were relatively close in time to the 8 June and 30 October Incident.

  109. [78] I have no hesitation in concluding that these are indeed minor deficiencies, if indeed they can be labelled as such. A patient may not necessarily remember all the details which are of a relatively minor and insignificant nature such as whether it was the right or left arm from which the blood was taken, where the patient’s chair was initially placed within the room, whether the treatment card was at any point of time in the doctor’s hand or remained always on the doctor’s table throughout the whole duration of the medical consultation. If the cross-examination descends into such minor and non-prominent details just to test the power of a patient’s ability to recall details which a patient would not ordinarily be expected to remember, and the patient is truly unable to remember those details months after the event, I do not think that the inability to recall should be treated as an inconsistency.

  110. [79] I share the view of the trial judge that the complainant’s account surrounding the alleged acts of the appellant is detailed and sufficiently clear. Her account features significant and prominent parts of the incidents that one would not ordinarily expect the complainant to forget. It is not likely that the complainant would forget how her breast and nipple were touched in the course of a medical examination if that in fact had happened. Having said this, I do bear in mind that a complainant who has a reason or a motive to frame her own doctor can just as easily fabricate the details of how the doctor had allegedly touched her breast. However, as was correctly pointed out by the trial judge, there was no motive for the complainant to falsely accuse the appellant. Furthermore, the actions of the complainant after the incident, which include checking with both her boss and another doctor on the appropriateness of the appellant’s actions shortly after the 30 October Incident, makes it unlikely for the complainant to have fabricated her evidence in order to get the appellant in serious trouble with the law (see also [143] below).

  111. [80] Mr Singh submits that the complainant’s account of the 8 June Incident is highly improbable. First, he submits that there is clearly no reason for the appellant, who has an unblemished record stretching 40 years, to do what is alleged by the complainant. Furthermore, there is no reason to do those acts when the sliding window was open and the nurse on duty could look in and see him do those acts. Finally, he also submits that the account of the complainant is not probable because there was no auscultation done by the appellant even though there was a complaint of chest pain. Again, I do not think these submissions go very far in establishing that the complainant’s account is highly improbable or even that it made the account improbable. There are various other plausible explanations as to why the appellant would do it despite having an unblemished record or despite the risk of the nurse looking inside the consultation room. It is some stretch to say that these made the account highly improbable, to the extent that a reasonable doubt arises as to whether the complainant’s account is true. Mr Singh also submits that for the 30 October Incident, the sheer description of how the appellant inserted his hand into the complainant’s brassiere would mean that the hand of the appellant would have to contort into a weird angle, which is not possible. I do not think this is the case as the complainant had explained that the appellant moved his hand underneath her T-shirt from the bottom, moved his hand upwards towards her chest and then inserted his hand inside her three-quarter cup brassiere from her cleavage to touch her breast.

  112. [81] Mr Singh also submits that it is incredible for the complainant, a divorcee in a sexual relationship with her boyfriend, to think that the squeezing of her breast was an acceptable response to a complaint of chest pain. He further submits that her response that she felt like the appellant was trying to tell her where her heart was is inconsistent with her response in cross-examination that she knew where her heart was. I do not agree.

  113. [82] First, the complainant did not testify that she thought that the squeezing of her breast was an acceptable response. According to the complainant, she did not feel like she was being molested at that time because the appellant had given her the “feeling” like (or as if) he was trying to tell her where her heart was. She was trying her best to describe a kind of “feeling” that she was experiencing at that time, and to describe this “feeling” in words is not that easy. A person may thus resort to describing it metaphorically. But her description of the “feeling” given to her by the appellant should not be misconstrued to mean that she was also stating, in the same breath, that she did not in fact know where her heart was. Neither was she saying that the doctor was, by his actions, telling her exactly where her heart was because she did not already know the position of her own heart and therefore needed the doctor to tell her where her heart was.

  114. [83] I do not find her evidence that she did not feel that she was molested at that time to be incredible because a patient would least expect to be molested during a medical examination by her own doctor. What must be further appreciated is that in this case, she had mentioned some chest pains which she suggested could be due to over-exercise and the fleeting touch of the breast and nipple done by the appellant was at the same time when he was saying “as long as …you don’t get chest pain here”. By not thinking that the appellant was molesting her at that time, she was giving him the benefit of doubt. The touching took place under peculiar circumstances whereby the appellant had set up the opportunity to touch the complainant inappropriately by apparently indicating to her where the chest pain would be so as to throw her off-guard as to his real motive for touching her breast and nipple.

  115. [84] During cross-examination the complainant denied that she had ever asked the appellant “What is chest discomfort?”. Next, when counsel essentially put to her that the appellant then said that there would be a crushing pain on the sternum, more to the left, she responded by saying that she was very sure that he never said that. According to counsel, the next thing that happened in the exchange between the appellant and complainant during the 8 June Incident was that the appellant demonstrated to the complainant by putting his clenched right fist on his own chest telling her there would be a crushing pain on the chest nearer to the left, to which the complainant answered during cross-examination with apparent indignation:

  116. [85] There is no inconsistency as submitted by Mr Singh because her metaphorical description of her “feeling” as if he was trying to tell her where her heart was had nothing to do with her indignant answer that she knew where her chest and heart were, and that she knew how a chest pain felt like. As I have explained, her indignant answer was given in the context of her denial of having asked the appellant what was chest discomfort and also her implied denial that she needed the appellant to demonstrate to her how chest plain felt like with his clenched fist over his own clothes, telling her that there would be a crushing pain at the site he indicated with his fist.

  117. [86] Finally to the more subtle point Mr Singh raises, that if she did not need anyone to show her where her heart was, how could she possibly think that the appellant’s excuse of trying to show her the location of her heart was appropriate. I must emphasise that there is a clear distinction between the fact that she herself knew where her heart was (and thus needed no one to show her the location of her heart) as opposed to the “feeling” given to her by the appellant, which is a metaphorical description of what she thought the doctor might be thinking of or was trying to do. She felt as if he was trying to show her where her heart was when he touched her chest fleetingly. In this regard, I am in full agreement with the trial judge who found that the complainant had more than given the benefit of the doubt to the appellant. He was a doctor and she genuinely but wrongly believed at that time that the doctor was not molesting her when he touched her chest fleetingly while saying the words “as long as … you do not get chest pain here” during a consultation session in which she had complained of chest pain due to over-exercise.

  118. [87] In fact, this was consistent with her actions after the 30 October Incident. She did not immediately lodge a police report and create a scene. She was confused and had to clarify with two people before lodging a police report the next day. A criminal offence of molest is a serious matter which she rightly had to be extremely careful about before lodging such a complaint against a doctor. This explains the extra caution she took by first checking with two others as to the appropriateness of the manner in which the appellant had touched her. Her evidence during cross-examination is worth setting out in full:

  119. Her testimony is completely consistent internally. At first, she thought it was not molestation when the appellant touched her breast during the 8 June Incident. However, she became confused and unsure after the 30 October Incident. She wanted to be very sure that there was no reason for the appellant to touch her breast before she reported the matter. This was her state of mind and it was internally consistent over both incidents.

  120. [88] Mr Singh also submits that the complainant’s account of the 8 June Incident was an afterthought given how late in the day it arose and how the events appeared to have evolved.

  121. [89] It is undisputed that there was no mention of this incident in the First Information Report of 31 October 2011 (“FIR”) nor was it mentioned to Susan or Dr Chia when the complainant contacted them on 30 October 2011. Furthermore, there was also no mention of this to Dr Kua when she saw him almost a year after the FIR. The complainant herself admitted that she could not recall if she told Dr Kua about the 8 June Incident.

  122. [90] In the trial below, IO Sabaran testified that he told the appellant on 4 November 2011, when P25 was recorded, that there were allegations made by the victim that the appellant had touched her on two different occasions. However, the questions posed by IO Sabaran to the appellant in P25 do not, on the face of it, reveal that IO Sabaran had told him of the two incidents.

  123. [91] In my view, there is no reason to doubt IO Sabaran’s evidence that he did tell the appellant of the two incidents. IO Sabaran had candidly admitted when giving evidence that he did not tell the name of the complainant to the appellant on their first meeting when P25 was recorded due to an oversight. A further reason why the 8 June Incident was not an afterthought is to be found in P21, which was recorded about 7 months after the FIR. The first question IO Sabaran posed to the appellant referred to two different occasions. This was clearly a reference to two separate dates as part of the appellant’s answer was that he did not remember about any earlier incident though he remembered the last date when he touched the complainant’s breast when examining her about exercise. In addition, it is entirely explicable why the complainant only told Susan and Dr Chia of the 30 October Incident. The context of the conversation was a query on the appropriateness of the appellant’s actions of that very day. It is not surprising that she did not mention the 8 June Incident. By the time P25 was recorded, four days after the FIR, IO Sabaran said he had mentioned two different occasions to the appellant. The 8 June Incident is therefore not an afterthought. With respect to Dr Kua, the complainant could not remember if she told Dr Kua about the 8 June Incident. Dr Kua’s clinical notes also only make reference to the 30 October Incident. However, I do not think that the failure to mention the 8 June Incident to Dr Kua is a material deficiency in her evidence. The trial judge had rightly pointed out that the trigger point for her symptoms of PTSD was the 30 October Incident and found that it was not surprising that she had only mentioned this incident as she hoped that her symptoms would go away. Given that the 8 June Incident is not an afterthought, her failure to mention it to Dr Kua is not a material deficiency in her evidence.

  124. [92] As to the evolutions of the account of the complainant in respect of the 8 June Incident, Mr Singh points to the differences in the framing of the actions of the appellant in the original second charge and amended second charge. These differences included a change from “sliding your hand into” [emphasis added] to “inserting your hand into” [emphasis added]. Furthermore, Mr Singh points to a difference in the wording of the original first charge and original second charge. Besides the date and time of the offence, there was one difference in the actions of the appellant in the charges. The original first charge stated that the appellant had touched the complainant’s left breast and nipple “while pressing down”. The italicised phrase is absent in the original second charge. Mr Singh submits that this strongly suggests the complainant told the police that there was a difference in the way she was touched on both incidents. The charge was amended on the first day of trial to read in identical terms that the appellant did use criminal force on the complainant by “inserting your hand into the said [complainant’s name] left brasserie cup and touching her left breast and nipple”. The only material difference between the two charges now is that the charge for the 30 October Incident stated that the complainant repeated the act of touching her left breast and nipple. Furthermore, Mr Singh points out that the complainant had testified in court that on both occasions, the appellant had squeezed her left breast. Mr Singh submits these changes and shifts show that there were inconsistencies in the complainant’s testimony. This submission leaves no favourable impression on me simply because the evolutions referred to were not material or significant. They did not alter the very essence of what the complainant claimed had happened. In this regard, there is no material inconsistency.

  125. [93] Considering the above, the complainant’s evidence as to what happened during the 8 June Incident is internally consistent.

  126. The 30 October Incident

  127. [94] Mr Singh also argues that there are various improbabilities in the complainant’s account of the 30 October Incident so much so that it renders it highly unreliable. First, it is inherently improbable that the complainant was chatting with the appellant during auscultation because it is “common knowledge” that it is not possible to auscultate a person when they are speaking because it would make it difficult to hear heart or chest sounds. I do not think this submission assists in showing that the account of the complainant is inherently improbable. The reference to the fact that a doctor cannot hear clearly when a patient speaks during auscultation as “common knowledge” is nothing more than a bald assertion, which I am unable to accept as being true in fact. No expert was called by the defence to testify on this fact. For the sake of argument, one can just as easily assert another bald assertion based on “common sense” that as the tone and frequencies of the sounds (eg irregular heart beat and other chest sounds) that the doctor is looking out for during auscultation are likely to be different from that of a human voice in conversation, the human ear will be capable of differentiating between those sounds and the human voice just as the human ear is capable of distinguishing between the melodies produced by the violin and the piano at a symphonic orchestral performance and hear both distinctly at the same time. As such, without an expert to verify the truth of Mr Singh’s bald assertion, I do not accept Mr Singh’s submission that there is inherent improbability arising from the complainant’s evidence because the auscultation had taken place in the course of a conversion between the appellant and the complainant.

  128. [95] Mr Singh also raises improbabilities similar to those raised in respect of the 8 June Incident. They are that there was no reason for the appellant with an unblemished record spanning 40 years to do such an act and that it was also possible for Linda to look through the sliding window into the consultation room at the material time. These make the complainant’s account highly improbable. Again for reasons I have expressed (see [80] above), I do not think this submission goes very far.

  129. [96] Mr Singh next argues that the complainant’s response to the appellant’s act is again improbable. The complainant should have immediately withdrawn when the appellant touched her breast the first time during the 30 October Incident. According to Mr Singh, the natural and instinctive thing to do is to withdraw and back away from the appellant and then complain. The reason given by the complainant for not doing so was that she was shocked and confused. When asked to explain why she felt shocked and confused, the complainant answered that it was because she “felt [she] was being violated but … wasn’t sure if [the touch was] necessary”. This adequately explains why she did not pull away after the first touch and why she was not quick enough to react before the second touch. As mentioned above, it is entirely consistent with the fact that she had to check with Susan and Dr Chia after the 30 October Incident on the very same day and the fact that she was wary of not creating an unnecessary fuss. It is also highly consistent with the complainant having felt violated but was just unsure if the touch was necessary. As I have previously mentioned, the line of consistency even traces back to the 8 June Incident where she had given the benefit of the doubt to the appellant that the touch was necessary because she complained of chest pain.

  130. [97] Mr Singh further claims that her reaction of shock and confusion as she felt like she had just been violated but was unsure if it was necessary does not square with her reaction when she left the consultation room. She had engaged Linda in a discussion on Botox and asked her if the dentist sharing the premises with the appellant did Botox. When it was put to the complainant in cross-examination that she asked the question in a smiling manner, she replied by saying “I am in sales… I smile all the time”. When asked by the court if she was smiling at the time she asked Linda the question, the complainant shifted slightly by claiming that she could not really remember. To begin with, I am of the view that it would not be inconsistent for her to have indeed asked that question in a smiling manner since at that point she was still relatively unsure of the appropriateness of the appellant’s actions. For this same reason, it would not have been inconsistent of her to ask Linda whether the dentist did Botox. At that point, though the incident was fresh, the entire gravity of the episode had not yet dawned upon her. It was only subsequently upon further reflection and after verification from Susan and Dr Chia that the full brunt of the incident set in. Be that as it may, Dr Kua did testify that if the complainant suffered a traumatic situation, she would want to leave the situation as soon as possible, and he found it unusual that she had asked about Botox so soon after the traumatic incident occurred. Again, this assumes that it was already a fully traumatic incident for her at that point in time which may not have been the case at all. It must be remembered that although she felt violated, she was still unsure whether she was molested as she had not yet sought confirmation from Susan and Dr Chia that the touch was indeed unnecessary for the purpose of the medical examination. Had the touch been necessary, then she would not have come to the conclusion that she had been molested. This was the frame of mind she was in at that point of time. The full implications stemming from the knowledge of having been molested and hence the trauma arising therefrom would not have fully set in at the time she was asking Linda the question whether the dentist did Botox.

  131. [98] Additionally, Dr Kua did also say that the fact the complainant asked Linda about Botox is not necessarily mutually exclusive with the fact that she displayed characteristics of a victim of a traumatic event. It must be noted that she left without collecting her change after paying for the consultation fees, which shows that she was not exactly her usual self after the consultation. This again is entirely consistent with the frame of mind she was in at that time – feeling violated yet unsure if she had been molested by her own doctor.

The judgment continues past this page. Read the rest at eLitigation.