Public Prosecutor v Aung Myo Thet

[2015] SGMC 11
Case Number
Decision Date
Tribunal/Court
Coram

: MAC 10324 of 2013

: 06 May 2015
: Magistrates Court
: Carrie Chan Su-Lin

Assistant Public Prosecutor Andrew Low for the Prosecution;

:
Counsel Name(s) Defence Counsel Peter Ong (M/s Templars Law LLC) for the
Accused
Parties
6 May 2015

: Public Prosecutor Aung Myo Thet

District Judge Carrie Chan Su-Lin:

1
This is an appeal by the prosecution against an order of acquittal. On 27 February
2015, I provided brief grounds pursuant to section 298(2) of the Criminal Procedure
Code Chapter 68. I now set out my grounds in full pursuant to section 298(4) of the
Criminal Procedure Code.
Background
2
The charge against the accused, Mr Aung Myo Thet for committing an obscene
act in a public place under section 294(a) of the Penal Code, reads as follows.
are charged that you, on the 14th of December 2013 at or about 10.06 pm at the void
deck of [address redacted], Singapore, a public place, did commit an obscene act, to
wit by exposing and stroking your penis in the view of one, [F] (F/21) and one [S] (F/31)
and causing annoyance to them and you have thereby committed an offence
punishable under section 294(a) of the Penal Code, Chapter 224.
3
The incident is said to have taken place at about 10.06 pm on 14 December
2013. At the material time, 2 women (the complainants) were seated in an outdoor
pavilion outside a HDB block when they observed a man seated at the void deck area
exposing and stroking his penis. The complainants were seated at a distance of about
13.6 meters away from where the man was allegedly engaged in the obscene act.
Issues before the court

4
The prosecutions case is the accused has committed an obscene act in a public
place and caused annoyance to others.
5
The accused disputes the charge. His defence is that the complainants were
mistaken in their observations and he was not engaged in an obscene act. He was
seated at the void deck area using his black smart phone to watch a movie. He was
waiting at the void deck as it is his routine to withdraw his salary from the POSB ATM
machine near the HDB block on the 14th day of each month at 10.45 pm, which is the
timing when his salary is credited into his bank account. He receives his salary twice
a month on the 14th day of each month and on the 29th day of each month. While
seated on the floor, he was also wearing a black waist pouch and wearing a blue tooth
ear piece.
6
To prove its case, the prosecution is relying mainly on the evidence of 2
complainants, PW6 [S] and PW7 [F] who provided eyewitness testimony on the
obscene act they observed. In addition, there are 5 prosecution witnesses comprising
the investigation team: PW1, Shawn Teo (IO), PW2, William Tan (Senior IO), PW3
Amos Lim (police officer), PW4 Randy Gabriel D Silva (sergeant from Jurong Police
Division who made an arrest report NP299 and PW5 Chua Xin Qian (investigation
officer).
7
PW3, Amos Lim was the first police officer to arrive at the scene together with
his partner PW4, Randy D Silva. PW2, William Tan, the senior IO arrived later at the
location together with PW5, IO Chua Xin Qian.
8
This is a serious offence which carries a penal sanction. The trial process allows
the evidence in relation to each witness to be presented and then the Defence was
given full opportunity to challenge the reliability of the evidence. At the close of trial,
the central issue is whether the prosecution has established its case beyond a
reasonable doubt or whether there is reasonable doubt in the allegations. In doing so,
it would be necessary to expansively consider the defence case and critically evaluate
the complainants evidence including internal or external inconsistencies and
improbabilities. The extrinsic supporting evidence would also be considered. The
presumption of innocence is the cornerstone and in the final assessment, a reasonable
doubt would overturn a finding of guilt.
9
The central disputed issue is the reliability and quality of the observations. Is it
proven beyond a reasonable doubt that the accused committed an obscene act or did
a reasonable doubt arise over the reliability and quality of the observations?
Prosecutions submissions
10 The prosecution submits that PW6 [S] and PW7 [F] provided clear and consistent
evidence on the following material points:
a) [S] and [F] testified unequivocally that they had seen the accused exposing
his penis and stroking it.
b) [S] testified that she first saw the accused stroking his exposed penis when
she put on her glasses and turned around to look at him at about 9 pm. She

had seen the accused still doing the obscene act when asked by [F] to check
on the block number.
c)
[S] noticed the accused when he first arrived to sit at the ledge. She saw
the accused holding onto his penis and stroking it.
d) Both [S] and [F] have testified to additional details such as the accuseds
sitting position whilst on the floor, which hand was used to stroke the penis and
a general description of the accused and what he was wearing at the material
time. These go towards showing the victims ability to have seen the accused
committing the obscene act, given the overall circumstances.
e)
Both [S] and [F] were clearly disturbed by the accuseds obscene act
before they decided to call the police.
Defences submissions
11
The defences submissions question the reliability of the Complainants visual
observations:
PW6 [S]
a) [S] informed the court that she is short sighted and has difficulties at night
with her vision. She told the court that the lighting was very dim. When PW7
told her that the accuseds private parts was exposed, she was not wearing her
glasses. She had to put on her glasses and turned around towards the direction
of the accused as her back was facing diagonally to where the accused was
sitting. Even then, she just had a fleeting glance at the accused and quickly
turned back and removed her glasses.
b) [S] could not tell the court how the man looked like. She could not see the
colour of his T shirt, shorts, ear piece and his waist pouch. She did not notice if
his T shirt covered his shorts. Even though she saw the accuseds private parts,
she did not know the colour of his private part. She told the court that she was
short sighted and therefore could not see the colour of the private part. It
appears that what she claimed that she saw was emanating from what PW7
told her.
PW7 F
c) [F] was seated further away than [S]. She described the lighting as orange
dim light.
d) [F] told the court that she saw the accused holding onto something and it
was definitely his penis. However, she did not see the accused holding onto a
hand phone.
12
The defence submits that the complainants could have been mistaken, from a
distance of 13.6 meters and in a dimly lit area, that the black smart phone which the
accused was holding in his hand to be a penis. This is aggravated by the position of

PW7 [F] who was seated further than 13.6 meters and the poor eyesight of PW6 [S]
who turned around and gave a fleeting glance on the accused.
Assessment of the evidence - general principles in evaluating the reliability of visual
observations
13 In evaluating the evidence, the key issue is the quality and reliability of the visual
observations. The defence position is that the complainants were mistaken in their
visual observations. While this relates to the observation of an obscene act and not
the identification of the accused, I found the principles set out in theTurnbull Rules to
be instructive. The Turnbull Rules have been widely accepted as the governing test
for visual identification evidence cited in England and other common law jurisdictions
see R v Turnbull [1997] QB 224. The Turnbull Rules recognise that there is a risk
of mistake in evidence involving visual identification. Therefore, whenever the case
against the accused depends wholly or substantially on the correctness of visual
identification which is alleged to be mistaken, the judge warns the jury of the special
need for caution before convicting in reliance on the correctness of the visual
identification.
14
The Turnbull Rules at page 552 which guards against the risk of mistaken
identification define a set of criteria to evaluate eyewitness identification evidence
competently:
the judge should direct the jury to examine closely the circumstances in which the
identification by each witness came to be made. How long did the witness have the
accused under observation. At what distance? In what light? Was the observation
impeded in any way, for example by passing traffic or a press of people? Had the
witness ever seen the accused before? How often? If only occasionally, had he any
special reason for remembering the accused? How long elapsed between the original
observation and the subsequent identification to the police? Was there any material
discrepancy between the description of the accused given to the police by the witness
when first seen by them and his actual appearance?
15
The Turnbull guidelines have been accepted in Singapore and adapted as a 3
step test. In Heng Aik Ren Thomas v Public Prosecutor [1998] 3 SLR 465 ta page
475 to 476, the 3 step test was stated as follows:
i) The first question which a judge should ask when encountering a criminal
case where there is identification evidence, is whether the case against the
accused depends wholly or substantially on the correctness of the identification
evidence which is alleged by the defence to be mistaken.
ii)
If so, the second question should be this. Is the identification evidence of
good quality taking into account the circumstances in which the identification of
the witness was made? A non-exhaustive list of factors which could be
considered include the length of time the witness observed the accused, the
distance at which the observation was made, the presence of obstruction in the
way of the observation, the number of times the witness had seen the accused.
In considering the circumstances in which the identification was made, the
judge should take note of any specific weaknesses in the identification
evidence. If after evaluation of the identification evidence, the judge is satisfied

that the quality of the identification evidence is good, he may then go on to

safely assess the value of the identification evidence.
iii)
Where the quality of evidence is poor, the judge should go on to ask the
third question. Is there any other evidence which goes to support the
correctness of the identification? If the judge is unable to find other supporting
evidence for the identification evidence, he should then be mindful that a
conviction which relies on such poor identification evidence would be unsafe.
The supporting evidence need not be corroborative evidence of the kind
required in The King v Baskerville [1916] 2 KB 658. What the supporting
evidence has to be is evidence that makes the judge sure that there was no
mistake in the identification.
16
Using these principles as a guiding framework in evaluating the quality of the
visual observations which were alleged to be mistaken by the defence, I considered
the following issues:
a)
Issue 1: Whether the evidence was of a good quality taking into account
the circumstances in which the observations were made?
b)
Issue 2: Was there any other evidence which went towards supporting
the correctness of the observations? What the supporting evidence has to be
is evidence that makes the judge sure that there was no mistake in the
observations.
17

I turn now to a consideration of these issues.

Circumstances in which the observation was made

18
To set the scene for the evaluation of the evidence, I briefly set out the
circumstances in which the observation was made.
a)

The visual observation environment ie. the viewing distance and lighting.

b)
What the accused was observed to be doing when he was first
apprehended by the police.

19

c)

The results of the search on the accused and on his hand phone.

d)

The items seized from the accused when he was arrested.

Visual observation environment

- The distance between the complainants and the accused was 13.6 meters.
The accused was sitting on a ledge inside the void deck while the complainants
were seated in an outdoor sheltered pavilion which was outside the void deck.
This distance was measured by PW1, IO Shawn Teo using a hand held laser
distance measuring device who took an average of 3 readings (see NE Day 1
page 26 at line 31).

- A sketch plan showing where the complainants and where the accused sat
is at exhibit P2. The sketch plan was prepared by PW1, IO Shawn Teo.
20

The offence occurred at night. The lighting was void deck lights.

What the accused was observed to be doing when first approached by the police
-

IO Amos Lim and Randy D Silva were the first patrolling officers to arrive.

- When IO Amos Lim arrived at the HDB block, he saw that the accused was
sitting down and looking at his hand phone and wearing an ear piece. He did
not approach the accused. He merely walked past. He told the court that the
accused was not behaving suspiciously. The accused was not exposing his
penis. The accused did not attempt to run away.
- Sergeant Randy D Silva saw that the accused was wearing a T shirt and
shorts and his T shirt covered his shorts. The accused was not exposing his
penis. He noticed that the accused was concentrating on his hand phone.
- Upon interview by the police officers, the accused said he was there to buy
something. He took a rest to use his hand phone and he denied the allegations
made by the complainants.
21

Results of the search on the accused and the vicinity

Senior IO William Tan checked the accused and found that he was not
wearing underwear. Thea accuseds bermudas are fastened by Velcro. Senior
IO William Tan referred to image B6 (P4.6) which shows how the bermudas
were fastened at the material time.

22

There was no semen found on the clothes or in the vicinity.

The accused was in possession of 15 cents.

Results on the search on the accuseds hand phone

- Senior IO William Tan searched the accuseds internet history on You Tube
and it revealed only music videos.
- Police officer Amos Lim went through the phone gallery, the search history
and the browsing history. There were no sexually explicit photos or
pornographic videos.

23

Items seized from the accused

- The accuseds clothings, a pair of floral bermudas were seized by IO Shawn
Teo at the police station exhibit P3. There was no semen found on his
clothings.
-

A photograph of the items seized and a receipt of the items is at exhibit D4.

24 I move on now to consider the evidence provided by the complainants. The case
hinges on the quality of the visual observations and whether the evidence of the
complainants could safely be relied on.
Issue 1: Is the evidence of a good quality taking into account the circumstances in
which the observation was made?
25
I accept that the prosecution witnesses honestly observed the accused and
commend the law enforcement team who responded swiftly. Having analysed the
evidence of the complainants in the light of the circumstances, I found that the
accuracy and quality of the observations were undermined. This is for the following
reasons.
26
First, there were objective factors in the physical environment which made
visibility conditions challenging and affected the quality of the observations. This
relates to the i) viewing distance ii) dim lighting conditions in the void deck and iii)
evidence from [S] that she had problems with her eyesight at night and only had a
fleeting glance with her eye glasses on. As a general principle, visual accuracy is
improved when the viewing distance is closer and lighting conditions are bright. Here,
the viewing distance was approximately 13.6 meters and both [F] [S] agreed that the
lighting was dim. The issue of adequacy of lighting is important as the observation of
the obscene act was made at night.
Lighting conditions
27
On the issue of lighting conditions, prosecution submits at paragraph 2 i. of its
Reply to Defences Closing Submissions (PSS2) that other witnesses such as PW2,
PW4 and PW5 gave evidence that they were able to see the accused from the victims
position at the pavilion. While I can accept that there can be some variance in
description of lighting conditions, the key consideration is whether the lighting
conditions were adequate for the material witnesses who were the complainants.
28

This was the evidence provided by PW6 [S] on lighting conditions:

NE Day 4 page 13 (10 June 2014) at lines 14 to 16

D/C:Ms [S], can you describe the lighting conditions at the void deck where this person
was seated?
S:It was very dim.
29 The word dim was repeated by the second complainant PW7 [F] who described
the lighting in which the accused person was seated as orange dim light.
NE Day 5 page 12 (17 September 2014) at lines 22 to 24
D/C:Can you describe the lighting in the area where the accused person was seated?
F:Like orange dim light.
30 When [F] was asked by defence counsel, whether she could see very clearly in
dim light and her answer was yes, this did not accord with the logic that seeing very

clearly at night requires good lighting - see NE Day 5 (17 September 2014) at lines 31
to 32.
31 When asked in re-examination to provide a photographic reference of the lighting
conditions comparing between photograph P6 and P4.2, [S] tells the court
that P4.2 shows that the lighting is too bright, maybe because of the camera used and
refers to P6 (which is a copy of a photograph) as the lighting conditions on the material
night. A perusal of photograph P6 clearly shows that the lighting was very dim and it
would be hard to see distinguishing features of the face, perceive contrast, colour and
small details from a distance of 13.6 meters. [note: 1] Photograph P6 was the only
photograph taken on the material night showing the view point of the complainants
while the accused was placed under arrest. The photograph was taken by PW5, IO
Chua Xin Qian using her IPHONE 4S camera to assist the investigations.
Reliability of the witnesses visual observations
32
Secondly, under cross examination, the reliability of the witnesses visual
observations revealed serious weaknesses. This was particularly significant for PW6
[S] who agreed under cross examination that she was not sure whether the accused
was fair or dark because the lighting was very dim and because she has problems
with her eyesight at night.
NE day 4 (10 June 2014) page 37 at lines 9 to 14
D/C:You are not sure whether he was fair or dark?
S:No, Im not sure because of the lighting.
D/C:Because the lighting was very dim?
S:Yes
D/C:And because you have problems with your eyesight at night?
S:Yes
33
There are other instances in the cross examination where PW6 [S] admits that
that the quality of her visual observation was impaired by the dim lighting and her poor
eyesight at night. She admits that her poor eyesight was aggravated because she only
had a fleeting glance the accused.
NE Day 4 (10 June 2014) page 40
Lines 7 to 10
D/C:And it was very dim?
S:Yes
D/C:And you have problems with your eyesight?
S:Yes
Line 17 to 32
D/C:I put it to you, on that day, it was dim. The lighting was very dim at the void deck.
S:Yes
D/C:I put it to you that you have a problem --- you have poor eyesight at night.
S:Yes
D/C:I put it to you, you could not identify the person because you did not have a good
look at him.
S:Yes

D/C:And it was the lighting was --- and it was aggravated by that the lighting was
very dim.
S:Yes
D/C:And it was aggravated because you only had a fleeting glance at him.
S:Yes.
34 Prosecution submits at paragraph 2a. of its Reply submissions (PSS2) that PW6
[S] was able to see clearly with her glasses which she had worn at the material times
when she saw the accused exposing and stroking his private parts. I fully accept that
vision can be corrected with eye glasses on. However, the troubling point remained
that even with her eye glasses on and vision corrected, PW6 [S] admits she was
unable to see whether the accuseds skin tone was fair or dark and was not able to
see the colour of the items which he was wearing such as his t-shirt, shorts, waist
pouch and his private part. In my view, this demonstrates that there were visual
difficulties presented by the dim lighting and viewing distance. Furthermore, this was
the case even when PW6 [S] was wearing her eye glasses. She admits that she was
unable to see the following:
a)
Inability to see whether the accuseds skin tone was fair or dark [S]
candidly admitted that she was not able to perceive whether the skin tone of
the accused was fair or dark because it was dim at that time. (See NE day 4
(10 June 2014) page 37 at lines 1 to 12).
b)
Inability to see colour [S] said that she could not the colour of the
accuseds t shirt, shorts and waist pouch. Neither could she see the colour of
his private part. (See NE day 4 (10 June 2014) page 28 at lines 9 to 30).
c) Inability to identify the accused [S] agreed that she was unable to identify
the accused because she did not have a good look at him. (See NE day 4 (10
June 2014) page 40 at lines 22 to 24).
2 cases cited by the Prosecution in Reply to the Defences submissions
35 In reply to points raised in the Defences submissions, the prosecution cites two
cases in its Reply submissions (PSS2) to address PW6 [S]s inability to describe
details of accuseds private part and her evidence that she only had a fleeting glance.
The cases cited are: Ong Tiau Tjun @ Rudy Haryono v PP
[2001] SGDC 342 and Thirumalai Kumar v PP [1997] 2 SLR (R) 266. Having
reviewed the 2 cases, I will address the submissions.
36 The prosecution submits at paragraph 2 e. of its Reply submissions (PSS2) that
it is unsurprising that PW6 [S] has difficulty in describing the colour of the accuseds
penis as it is one thing to know a penis when one sees it but no so easy a task when
asked to describe it, referring to the case of Ong Tiauw Tjun @Rudy Haryono v
PP [2001] SGDC 342 at [52] in which the accuseds appeal against conviction lapsed
at [Tab B] of its Reply submissions.
37
Having examined the factual matrix in Ong Tiauw Tjun, I note that there were
distinguishing factors from the present case. The distinguishing factors are i) the
offence in Ong Tiauw Tjun occurred when there was daylight and lighting conditions

were bright and ii) the distance between the complainant in Ong Tiauw Tjunand the
accused was much closer. Due to the factual circumstances in Ong Tiauw Tjun, the
court in Ong Tiauw Tjin was on much firmer ground when it found that the observations
of the obscene act were reliable.
38
Facts of Ong Tiauw Tjin: The complainant went to the swimming pool of her
condominium at about 5.45 pm. At about 6 to 6.05 pm she noticed that accused taking
out his penis. She was swimming when she noticed the accused removing his
swimming trunks and taking out his penis. It was the complainants evidence that the
accused exposed his penis 3 times. The first observation was when she was 2 feet
(0.6 meters) away, the second observation was when she was 5 feet (1.5 meters)
away and the third observation was when she was 2 3 feet (0.91 meters) away.
39 In my view, it is relevant to consider the complainants ability to perceive colour
as questions were raised on what they could see given the dim lighting conditions and
the 13.6 meters viewing distance. The ability to perceive colour and detail is important
as it is fundamental factual element in the charge that a skin coloured object (a penis)
was exposed and a skin coloured object (hand) was stroking it.
40
Apart from the witness testimony, the court had to consider the photographic
exhibits which were adduced as evidence. Looking at photograph P6 which shows the
viewpoint of the complainants, the accused person is seen as a black blurry silhouette.
This is starkly different from the factual matrix in Ong Tiauw Tjunwhere the observation
was carried out in broad daylight at 6.05 pm and the accused person was 2 feet (0.6
meters) away during the first observation, 5 feet (1.5 meters) away during the 2nd
observation and 2-3 feet (0.91 meters) away during the 3rd observation. In terms of
making a visual observation, one can generally say that there is much more clarity
involved in seeing a penis from 1 or 2 meters away under conditions where there is
bright lighting as opposed to seeing a penis from 13.6 meters away under conditions
where there is dim lighting.
41 To address the issue of the fleeting glance, the prosecution submits at paragraph
2 d. of its Reply submissions (PSS2) that even though PW6 [S] had only glanced at
the accused, she was focussed on confirming what PW7 [F] had seen and thus had a
conscious intention of getting a good look, citing the case ofThirumalai Kumar v
PP [1997] 2 SLR (R) 266 at [Tab A] of its Reply submissions.
42
In Thirumalai Kumar (which concerns a charge under section 279 of the Penal
Code for rash driving in a manner so as to endanger human life), a traffic policemans
identification was upheld as accurate even though he had only 3 fleeting glimpses of
the accused while chasing the accuseds car on his motorcycle at about 150 km/hr in
night time conditions and in circumstances where the accused was trying to run him
off the road. The reason for upholding the identification as accurate was that the traffic
policeman was focussed on arresting the accused and thus had a conscious intention
to get a good look at his face. While I accept that a fleeting glance may be sufficient
to get a conscious good look, I note that at paragraph 17 of the judgement inThirumalai
Kumar, CJ Yong Pung How observed that it was plausible with the beacon light
flashing continuously, this could have illuminated the perimeter of the car and even
enhanced the view of the drivers features. This meant that the illumination
in Thirumalai Kumar was found to be adequate in capturing the drivers facial features.

In the present case, based on the evidence provided by the complainants, I could not
make the finding that the lighting was adequate.
Other mistakes and shortcomings in the witnesses observations
43 Third, under cross examination, further mistakes were revealed in the witnesses
observations. These mistakes are:
a)
Mistake in estimating viewing distance - Both complainants PW6 [S] and
PW7 [F] were mistaken on the viewing distance. With the assistance of a tape
measure, [S] estimated that the distance between the accused and her was
about 5 meters. When the prosecution referred her to the sketch plan which
indicated 13.6 meters, she admitted she could be wrong. (See NE day 5 17
September 2014 at page 22 and 23.)
[F] first states that the viewing distance is about 10 meters. With the assistance
of a tape measure, she estimates the viewing distance to be 5 meters (488 cm).
[F]s estimation of the viewing distance was hugely inaccurate as the correct
distance was about 13.6 meters.
b)
Mistake in perceiving colour In the first information report (exhibit P7)
dated 14 December 2013 at 10:06 pm, [F] states that THERE IS A MAN HERE
SITTING AT THE VOID DECK ON THE GROUND FLOOR. HE IS WEARING
BEIGE COLOR SHIRT AND SHORTS. This is inaccurate as the accused
was wearing pink colour shorts with floral patterns and a black coloured shirt
(see photograph P4.6).
44 As the trial judge assessing the reliability of their evidence, it was troubling when
the complainants made subjective assessments which did not match up to objective
reality. The complainants ability to see accurately and to draw the right conclusion is
critical as their evidence is relied on to make out the charge. These mistakes
highlighted that the complainants may not have correctly interpreted or comprehended
what they perceived and come to a conclusion which was inaccurate.
45
PW7 [F] admitted that she could not see the flowers on the accuseds shorts.
These were large black graphic floral patterns on the accuseds shorts which were
larger than palm sized and strikingly contrasted against the accuseds pink shorts
placed at the same location and same proximity as the obscene act. (SeeP4.5 for a
photograph of the black graphic floral prints on the pink shorts worn by the accused.)
NE Day 5 (17 September 2014) at page 44 lines 11 to 19
D/C:When you saw him under the orange dim light, what was the colour of his shorts?
F:I dont remember. I just know that he is wearing a shorts.
D/C:Because you could not see the floral --F:Yah
D/C:--at the distance?
F:Yes
D/C:You could not see any flower at the distance?
F:Yes
46 PW7 [F]s inability to see the large flowers on the accuseds shorts gave rise to
reasoned doubt on the power and accuracy of her visual observations: If [F] was

unable to see the obviously large and palm sized black and white flowers on the
accuseds shorts, how could the court be sure that she saw the accuseds penis being
exposed?
47 Fourth, apart from the quality of the visual observations, I found certain aspects
of the complainants evidence to be improbable.
a) [F] states that she observed the accused to be exposing and touching his
penis at about 9.05 pm only stopping about 5 minutes before the police arrived
at 10.20 pm. Based on this observation, the accused would have been exposing
and stroking his penis for 1 hour and 15 minutes. This was improbable for a few
reasons. As this was a void deck and a public area, it is likely that there would
be other people passing by over a period of 1 hour 15 minutes who would have
been alarmed by such behaviour and informed the police.
b) [F] states that she was in the habit of sitting at the pavilion near the HDB
block and that there are a lot of foreign workers hanging around that area,
mostly from Bangladesh. On the material day, she was seated at the pavilion
for 2.5 hours from 8 pm to 10.30 pm. However, she states that there
were noforeigners walking around that area apart from the accused - see NE
day 5 page 20 (17 September 2014) at lines 10 to 26). How probable was it that
there were no other persons or foreigners walking around a public void deck for
a period of more than 2 hours?
c)
In her testimony, [F] stated that the accused was masturbating. Despite
the accused stroking his penis for over an hour, no semen was found on his
clothes or in the vicinity.
Issue 2: Was there any other evidence which went towards support the correctness of
the observations?
48
I considered whether there was any other supporting evidence which went
towards showing that the observations were correct. In this regard, I found a lack of
supporting evidence. As indicated in the Defence Closing Submissions (DSS1) from
paragraphs 75 to 78, there was a lack of other evidence or items which supported the
correctness of the observations:
The first police officer PW3, Senior Investigating Officer Amos Lim Wei Hong
agreed that when he arrived at the HDB block, he saw the accused engrossed
with his phone and wearing an ear piece. [note: 2]
The accused did not run away or try to leave the scene when the uniformed
police officers arrived.[note: 3]

PW3, Amos Lim searched the accuseds phone and there was no
incriminating evidence. There were no pornographic videos or photographic
images. The internet browsing history was also checked. It was a music video
that the accused was watching earlier. [note: 4]

There was no semen found on his clothes or in the vicinity.


A photograph was taken contemporaneously of the accuseds bermuda
shorts and the velcro strap was closed. There was absolutely no exposure. The
drawstring on his bermuda shorts were tied up into a secure knot and ribbon
(see photograph P4.6).
49 The accused was searched and was found not be wearing underwear. The fact
that he was not wearing underwear was a neutral factor and did not point towards his
guilt.
50
While it can be said that the observation made by PW7 [F] supported the
observation made by PW6 [S] in that they both observed the accused committing an
obscene act, I was mindful that it was the quality of their observations rather than
quantity which mattered even a number of honest witnesses could be mistaken. In
the final analysis, the court had to carefully assess the quality of each of the witnesses
observations. Standing alone, were each of their observations sufficiently reliable to
support the correctness of what they both observed? For reasons provided from
paragraphs [25] to [46] in the GD, I found weaknesses in the quality of their
observations.
Evaluation of the accuseds credibility
51
On the accuseds evidence, prosecution submits that there are inconsistencies
in his oral testimony in court and the account in his police statement recorded on 15
December 2013 (P8).
52
The prosecution sought to cross examine the accused on his own statement
pursuant to section 258 of the Criminal Procedure Code and thereafter to impeach the
accuseds credibility under section 157(c) of the Evidence Act and to admit the relevant
parts of the statement under section 147(3) of the Evidence Act (see paragraphs 12
and 13 of the Prosecutions Submissions - PSS1).
53
Prosecution raises 4 points of inconsistencies/discrepancies between the oral
testimony and the recorded statement relating to i) the accuseds claim that he did not
see the victims ii) accuseds position whilst on the floor iii) the state/position of the
velcro of his shorts and iv) what the accused was doing with his hands at the material
time.
54 In considering the effect of internal inconsistencies, the inquiry turns to whether
these inconsistencies are explained. If not explained reasonably, do they constitute
serious or major inconsistencies? Considering the 2 inconsistencies, are they based
on inconsistent beliefs? In this regard, I found the approach in PP v Heah Lian
Khin [2000] SGHC 154 at [31] to be instructive. Yung Pung How CJ in determining
the interpretation of the phrase previous inconsistent or contradictory statement,
cited Chief Justice M Monirs Principles and Digest of the Law of Evidence at p 1566:
There must be a real inconsistency between the two assertions of the witness. The
purpose is to induce the tribunal to discard the one statement because the witness
has also made another statement which cannot at the same time be true. Thus it is
not a mere difference of statement that suffices; nor yet is an absolute oppositeness
essential; it is an inconsistency that is required. Such is the possible variety of

statement that it is often difficult to determine whether this inconsistency exists. As a

general principle, it is to be understood that this inconsistency is to be determined not
by individual words or phrases alone, but by the whole impression or effect of what
has been said or done. On a comparison of the two utterances, are they in effect
inconsistent? Do the two expressions appear to have been produced by inconsistent
beliefs?
55
The basic principle is that minor differences do not undermine credibility. The
issue is whether the accused has deliberately omitted the material facts in an attempt
to paint a different picture of the events which occurred. See Public Prosecutor v
Heah Lian Khin at [63] [65]. The credibility of the accused cannot be impeached
unless there are serious or material contradictions in his evidence: Mohammad Zairi
bin Mohamad Mohtar v PP [2002] 1 SLR (R) at [33]. It would require taking into account
the totality of the evidence tendered at trial: see Kwang Boon Keong Peter v Public
Prosecutor [1998] 2 SLR (R) 211 at [21]
56 I analysed the 4 points of inconsistency underlined in red in his statement, which
were highlighted by the prosecutor in court, against the Accuseds testimony:
i) In relation to whether the accused saw the victims, this is an inconsistency
which the accused explains. He agreed that when he sits at the ledge at the
void deck he would be able to see the pavilion and notice the two ladies but he
did not notice whether they continued to sit there or not. This was not an
adequate explanation. However, it should be noted that the burden still lays on
the prosecution to prove the accuseds guilt beyond a reasonable doubt and in
discharging that burden, it would be insufficient to point to inadequacies in his
testimony see Tan Edmund Public Prosecutor [1995] 2 SLR 102.
ii)
Based on the evidence of Senior IO William Tan who referred to
photograph B6 (see exhibit P4.6)as reflecting the condition of his shorts when
the accused was arrested, it was established that the velcro of the accuseds
shorts was untidy but it was not open. The police informing the accused that his
velcro was open (in the statement) was not factually accurate as the velcro was
untidily fastened but it was not open. Therefore, the accuseds statement that
I did not even notice the Velcro was open until the police told me would not
be inconsistent with the position taken by the accused in his oral testimony that
the velcro was not open.
iii) In my view, the difference in sitting position, ie. whether the accused was
squatting or sitting cross legged was not a significant discrepancy. The
accuseds explanation for the difference in sitting position is due to fallibility of
memory. When asked to explain the difference in sitting position, he explains I
cannot remember whether I sit on the floor or squatting on the floor.[note: 5]I
found this to be an acceptable explanation.
iv) In his statement, the accused admits to feeling itchiness at his thigh area
and scratching it. He pulls up his shorts slightly above the knees to scratch. In
the court testimony, this scratching of the thigh area was not mentioned. In my
view, this was not a significant omission. I place a note here that even if the

accused admitted to using his left hand to scratch, this would not conclusively
prove or infer that he was exposing and stroking his penis.
57
Application of the principles: Having reviewed the notes of evidence and the
explanations provided by the accused, I am of the view that these points of
inconsistency were not serious inconsistencies or material discrepancies which
destroyed his credibility. The inconsistencies were not based on inconsistent belief
and did not go to the crux of the charge against the accused Kwang Boon Keong
Peter v PP [1998] 2 SLR (R) 211 at [26]. In the circumstances, the accuseds credit
was not impeached.
58
The prosecution applied to admit the inconsistent parts of the statement under
section 147(3) of the Evidence Act. Under section 147(3) of the Evidence Act, if a
statement is inconsistent with the testimony of the witness, application may be made
for the inconsistent parts to be admitted as evidence of the facts stated therein. The
weight to be given to the statement is stipulated by the factors in section 147(6) of the
Evidence Act which provides that In estimating the weight, if any, to be attached to
a statement admissible in evidence by virtue of this section regard shall be had to all
the circumstances from which any inference can reasonably be drawn as to the
accuracy or otherwise of the statement and, in particular, to the question whether or
not the statement was made contemporaneously with the occurrence or existence of
the facts stated, and to the question whether or not the maker of the statement had
any incentive to conceal or misrepresent the facts.
59 Section 147(6) of the Evidence Act makes clear that the weight of the inconsistent
parts of the statement should be considered in the light to all the circumstances of the
case including other evidence in the case. InLee Yuen Hong v PP [2009] 2 SLR 338
at paragraph 55, Yong CJ stated: The courts must always exercise caution when
admitting a previous inconsistent statement for the truth of its contents. Although the
previous statement may have been made voluntarily, the weight to be accorded to
such a statement should still be carefully considered.
60
Having considered the circumstances of the case and the inconsistent parts of
his statement, I found that not much weight could be placed. In any event, I did not
find the inconsistencies to be material.
61
The accused gave a credible and coherent account which was consistent with
his statement to the police that he did not commit an obscene act. I found his
explanation to be plausible and supported by some external evidence.
The accused stopped at the HDB block to wait until 10.45 pm to withdraw
his salary from the POSB ATM. His salary is credited into his bank account on
the 4th and 15th of every month and on the material day, his salary would be
available for withdrawal at 10.45 pm. The defence tendered a copy of the
accuseds payslip (exhibit D2) and POSB passbook entries (exhibit D3) which
showed the date his salary was credited into the account which was consistent
with his reason for waiting at the HDB block. The accused was in possession
of only 15 cents.[note: 6]

 He sat on the floor and watched a movie on his smart phone while wearing
a blue tooth ear piece. He denies exposing and stroking his penis on that
evening. He was watching a movie on his smart phone.[note: 7]
Some police officers in uniform walked past him. He continued to watch his
movie. The police questioned him, searched him and he informed PW4, Randy
Gabriel D Silva that he was walked from Soon Lee to the incident location and
had taken a rest to use his phone. [note: 8]
PW3 Amos Lim observed the accused to be wearing an ear piece when he
arrived at the HDB block.[note: 9] PW4, Randy Gabriel DSilva observed the
accused to be concentrating on his hand phone when he was approached. [note:
10]

62
I noted that the conduct of the accused was consistent with that of an innocent
person (see paragraph 82 of the Defence Closing Submissions - DSS1). When the
police officers who were in uniform walked past him, he did not run away or behave
suspiciously. He remained in the same spot and was observed to be fully engrossed
watching his movie on his smart phone. The police officers testified that his penis was
not exposed when they observed him from a distance. When interviewed by the police
officers, the accused told them he was watching a movie on his smart phone. A search
of his hand phone did not reveal any pornographic photos, video or incriminating
search history. The accused cooperated with the police and did not resist arrest and
being searched.
Conclusion
63
The evidence supporting the charge is primarily based on visual observation.
Generally, visual accuracy improves with bright light and close proximity and declines
with less light and increasing distance. I accept that the complainants honestly
observed the accused and sympathise with the annoyance caused. However, I had
difficulty accepting that their visual observations were a reliable platform to support a
criminal conviction when the viewing distance was 13.6 meters and the lighting was
dim. Based on the evidence provided by the 2 complainants who both informed the
court that the lighting was dim, I could not make the finding that the lighting was
adequate. Under such circumstances, the visual observation would be made in difficult
conditions.
64
Having assessed the evidence, I found i) serious weaknesses in the
complainants observations and ii) a lack of other evidence which went towards
supporting the correctness of their observations. For these reasons, I concluded that
it would be unsafe to rely on their observations to support a criminal conviction.
65
Reasonable doubt was defined by VK Rajah JA in Jagatheesan s/o
Krishnasamy v Public Prosecutor [2006] 4 SLR 45 at [55] as reasoned doubt. This
compels the trial judge to reason strictly in accordance with the evidence. It has to be
borne in mind that illusory or fanciful doubts would not be sufficient to warrant an
acquittal; they must be real or reasonable - see Kwan Peng Hong v Public
Prosecutor [2000] 4 SLR 96.

66
Having considered the evidence adduced as a whole in this case, the case
against the accused was not proven beyond a reasonable doubt. Accordingly, I
acquitted Mr Aung Myo Thet on the charge.

[note: 1]NE Day 4 (10 June 2014) page 50 at lines 3 to 32

[note: 2]
NE Day 3 (9 June 2014) page 11 at lines 10 to 13
[note: 3]
NE Day 3 (9 June 2014) page 6 at lines 14 to 15
[note: 4]
NE Day 2 (28 May 2014) page 7 at lines 3 to 13
[note: 5]
NE Day 7 (25 November 2014) page 4 at line 15
[note: 6]
NE Day 6 (18 September 2014) pages 4 ad 5
[note: 7]
NE Day 6 (18 September 2014) page 7 at lines 17 to 31
[note: 8]
NE Day 3 (9 June 2014) page 23 at lines 1 and 2
[note: 9]
NE Day 3 (9 June 2014) page 11 at lines 10 to 13
[note: 10]
NE Day 3 (9 June 2014) page 21 at lines15 to 18