You, Kesavan Pillai Govindan, are charged that you, on 15 September 2013, at or about 4.50pm, along Guillemard Road in the vicinity of City Plaza Shopping Centre located at 810 Geylang Road, Singapore, did cause hurt to one Muhammad Nuralif Affendi Bin Zulkafli (male / then 22 years old / D.O.B. 18/03/1991) by doing an act so rashly as to endanger the personal safety of others, to wit, by driving your car bearing the license plate no. SKJ5230L forward when the said Muhammad Nuralif Affendi Bin Zulkafli was standing in front of your car, thus causing your car to hit onto the left shin of the said Muhammad Nuralif Affendi Bin Zulkafli twice, thereby causing the said Muhammad Nuralif Affendi Bin Zulkafli to sustain a contusion over the left anterior shin, and you have thereby committed an offence punishable under s 337(a) of the Penal Code (Cap 224, 2008 Rev Ed).

In gist, the [Respondent] testified that he did not hit PW1 with his car. After an argument with PW1, the [Respondent] wanted to drive off but could not do so as PW1 had rushed forward to the front of his car. The [Respondent] reversed his car and tried to move off again but PW1 was still in his way. He reversed again and finally managed to go round PW1 and drove his car to a nearby carpark.

[emphasis added]

As I’m moving forward, just then, he started walking to his walk---he started walking to the front---towards the front of the car. But he has not---he’s not at the front yet. He reached over to the front corner. My car, Sir, has sensors, even to measure the distance of objects. So, when he comes very close to the car, it would beep. So, I stopped. So, what is this guy doing? Asking what is this guy doing. Okay, never mind. He’s---he’s out to---I feel, like, he’s---he’s just not right. So, I reversed. But this time, he’s standing in front of the car. I turned extreme right, my steering wheel and I try to move. As he saw that I was trying to move, he walked closer to my car again. I was, like, okay, never mind. I reversed again. Can’t remember, Sir, whether it was twice or thrice. I reversed again. I think, my second reverse or third reverse. I could tell from my left view mirror that my tyre is almost in contact with the kerb---the black and white kerb on my left. And I know I cannot go any more. I cannot reverse anymore. I cannot move. He’s already very close to my car. I cannot move forward. I cannot because I’m on the kerb. So, I---I just stopped. I just stopped and I look at him. He saw me for 1 or 2 seconds. He look down and he moved to the side of the pavement. As he moved to the side of the pavement, he just took a few steps. He was clear. I had enough clearance, I drove off on my right and I just turned left into the condo.

[emphasis added]

Q Now, my instructions are that my---as soon as [PW1] move forward and my client realised he had moved forward, my client stopped the car immediate---

A No, as in, before he moved forward, he wasn’t even moving yet. So as soon as he stopped right in front of the Mercedes Benz driver, then he start to move forward. So at the moment that [PW1] was in front of the car, then he started to move. Before that, he wasn’t even moving at all. He was still stationary.

…………

Q You said there was a moment of pause, what---

A Yah.

Q ---do you mean?

A So the moment he stood in front of the car, there was nothing yet, then he started to move off, for that one or two seconds.

Q Then my car---client stopped the car.

A Yah, then he reversed.

Q Do you know why he stopped the car? Well, my instructions are that as soon as my client realised that [PW1] was in the front, my client was surprised and stopped the car immediately and then he reversed the car.

A Uh-huh.

Q And then he tried to turn out to the right but [PW1] moved forward.

A No, he wasn’t moving forward, he was still standing there firm on the one spot until the second hit.

Q Hold on, there was a second hit?

A Yah, there was a second, on the third attempt to move out. He---

Court: Yes.

A ---attempted to move out three times.

……

Q So the second time, was it a touch or a hit?

A Definitely a hit because he was already wobbling and he took a step back.

[emphasis added]

A No, he was definitely not walking closer. He was still standing firm at his own position.

…..

A No, he wasn’t even walking off anywhere. He was just standing there all the way until the driver left.

Q So [PW1] did not move from there?

A No. He have to take one step back as the Mercedes Benz driver tried to attempt the third time to move off. So there were three attempts. The second one not hitting, just the first and the third.

Q ---hit. Oh, you said the first one was a touch.

A Strong tap, strong touch, whatever.

Q And the second---what about the third time when my---

A The third one, the third attempt to move off, he did hit [PW1] for a second time, this time, he was taking a step back and his upper body was wobbling already.

Q Which part of my client’s car made contact with [PW1]?

A The front of the bumper of the car.

Q The front corner?

A The bumper, yah.

……..

A He only walked away as soon as the driver left. Before that, he wasn’t moving at all.

[emphasis added]

55  The Appellant turns first to the trial judge’s reasoning on why the victim’s account appeared to be internally and externally inconsistent. As can be seen below, each of the lines of reasoning employed by the trial judge, with respect, fails upon closer analysis.

a. Trial Judge’s observation / inference (GD, at [8]): The victim claimed that he had lost his balance after the vehicle made contact with his leg. The trial judge took issue with this as he noted that the victim was able to raise his left hand and gesture for the Respondent to stop. The trial judge also found it odd that the victim was not angry or shocked by the alleged reckless act and continued standing on the road, placing himself in a vulnerable position noting that if the victim was hit once by the Respondent, he would not have remained there to be hit again.

Appellant’s Response: The victim testified that although he lost his balance, he did not fall. ²⁵ It is significant to note that this version of events was maintained by the victim from the outset as the physician who attended to him, i.e. PW3 Dr Arroyo, reported a similar account being given to her. It should be added that significantly, this version of events (i.e. that there were two hits) was corroborated by both PW5 Hanis ²⁶ and, to a lesser extent, by PW6 Maggie ²⁷ (the latter having indicated that she saw the victim stumble after what appeared to be an initial contact). Having regard to these pieces of evidence, it is difficult to understand the concerns of the trial judge with the victim’s evidence on this front. Indeed, compellingly, the victim had explained that he had stood in front of the vehicle to issue a summons to the latter ²⁸ and in the commission of such duty, noted that the Respondent was trying to leave the scene. Seen from that perspective, there was nothing remotely illogical about the victim’s decision to try and have the Respondent stop after being hit by him, rationalising quite rightly that standing in front of the vehicle would have minimised the prospects of the Respondent absconding.

b. Trial Judge’s observation / inference (GD, at [9]): The victim testified that he was standing in front of the car, issuing a summons to the Respondent when he felt the vehicle inch forward and make contact with his leg. However, in his police report (Exhibit ‘’P3’), the trial judge noted that there was a “crucial piece of inconsistency” in that the victim stated that it was only when he noticed that the Respondent was about to move off that he moved to the front of the car. ²⁹

Appellant’s Response: It is not apparent how the accounts are inconsistent. In the police report, the victim had stated that he was writing the summons form when the Respondent shouted at him to carry on, prompting the victim to tell the latter that he would call for the Police as he refuses to cooperate. The victim then saw the Respondent “getting ready to drive off” and stood in front of the car, gesturing for the latter to stop. It should be stressed that this evidence plainly does not mean that the Respondent was literally driving off at the time, only that he was seemingly in the preparatory stages of getting ready to drive off – to explain the factual circumstances in the words of PW5 Hanis, the Respondent was “starting to put back his seatbelt with his right (hand) placed on the wheel and his left hand on the gearbox as he was…most likely about to drive off.” ³⁰ It should be added for completeness that this is also in line with PW6 Maggie’s testimony, as she herself noted when the victim moved in front of the vehicle, the Respondent had merely placed his hands on the steering wheel and the victim would not have expected the Respondent to drive off. ³¹ Seen in proper context then, it is obvious that the police report lodged by the victim did not contradict his court testimony; on the contrary, his account in the police report was consistent with his subsequent account of what had transpired, namely, that the victim was in the preparatory stages of driving off when he moved to the front of the vehicle.

c. Trial Judge’s observation / inference (GD, at [12]): The victim’s account of standing in front of the vehicle when the Respondent started to move off is contradicted by PW2 Syed, PW5 Hanis and PW6 Maggie, who testified that the victim was standing next to the driver’s door when the Respondent was about to drive off.

Appellant’s Response: As has been discussed at length above, this appears to be an erroneous characterisation of the evidence. As set out in some detail above, PW2 Syed, PW5 Hanis and PW6 Maggie all gave evidence that the victim had moved to the front of the vehicle before the latter drove it forward. None of their compelling testimonies in relation to this was alluded to or dealt with by the trial judge in the GD. When the evidence is seen in its proper context therefore, there is plainly no contradiction as suggested by the trial judge; on the contrary, the evidence unambiguously supports the victim’s version of events.

d. Trial Judge’s observation / inference (GD, at [12]): The victim denied having an argument with the Respondent. This, the trial judge surmised, must have been false as PW2 Syed and PW5 Hanis testified that there was an argument between the Respondent and the victim. In the same vein, the victim denied having uttered the phrase “What the heck!” to the Respondent, even though PW5 Hanis testified that he heard the victim doing so.

Appellant’s Response: It is hardly surprising, given the passage of time between the incident and the trial that the victim may not have recalled the precise specifics of the verbal exchange that he had with the Respondent. As will be discussed later on (see [58] below), all of the witnesses admitted to not being able to recall some particular specifics of the incident. The broad thrust of the evidence before the Magistrates’ Court, and by extension, this Honourable Court, is clear – as PW2 Syed noted, the victim told the Respondent to drive off but the latter refused. Thereafter, an argument ensued between them and he heard the victim telling the Respondent that he could not park along double yellow lines to which the latter replied that he did not know about yellow lines. The argument then continued. This is broadly consistent with the victim’s testimony that he had asked the Respondent if he knew what double yellow lines meant and the victim had replied that he did not and that they had a long conversation with the Respondent during which he had asked the latter to drive off but he refused to.

It might be further added that this evidence is again broadly speaking consistent with that of PW5 Hanis who testified that the victim had been speaking to the Respondent in a calm manner until the Respondent repeatedly disobeyed his instructions to move off and started speaking with a slightly raised voice. It is significant to note that he was of the view that the Respondent was plainly the more aggressive one between the two of them. ³² Whatever the contents of the exchange between the victim and the Respondent therefore, the evidence is unambiguous on the fact that the argument had escalated largely due to the Respondent’s own actions, and that he was angry with the victim immediately before the incident transpired. This serves to provide a useful complexion as to why the incident transpired in the first place, i.e. the Respondent was completely unconcerned about hitting the victim in his anger in driving off.

In any event, even taking the Respondent’s case at its highest, and even assuming that the victim was intentionally understating his involvement in the exchange with the Respondent prior to the incident, it is difficult to see how that alone serves to fatally undercut the veracity of the victim’s evidence as to what happened subsequently. After all, even assuming one takes the victim’s account of the verbal exchange as being inconsistent with PW5 Hanis, his testimony on having been in front of the vehicle subsequently when the Respondent started to drive away was corroborated by every single eye-witness at the scene (including PW5 Hanis). In the same vein, the victim never wavered on the fact that he had been hit twice by the Respondent’s vehicle, a fact that the Appellant might add (as set out in extensive detail above) is fully corroborated by other eye-witnesses.

In the circumstances, even if the trial judge felt it necessary to treat with circumspection the victim’s account about the specifics of the verbal exchange between the parties, it would be difficult to see why it ought not to have, having considered the evidence, accepted his account of the incidents amounting to the offences the Respondent was being charged with taking place. The law is clear on this – it is open for a Court, having considered the circumstances of the case, to believe the evidence of a witness, so far as the essentials of the case are concerned, without having to accept as true every single facet of his/her evidence: see Public Prosecutor v Singh Kalpanath [1995] 3 SLR(R) 158 .., at [88] and Public Prosecutor v AOF [2010] SGHC 366 .., at [72].

……..

59  In respect of PW2 Syed, the trial judge found that he was unhelpful as he was evasive when it came to answering certain questions. The trial judge reasoned this to be the case as PW2 “kept repeating that he did not know much as he did not want to get involved” (GD, at [14]). This appears to be a misunderstanding of the thrust of PW2 Syed’s evidence – to be sure, PW2 Syed did indicate that he did not wish to “get involved”, however this was in the context of explaining to the Court as to why he was not aware of certain specifics of the exchange between the Respondent and the victim. ³³ Simply put, the only point he was trying to get across was that he could not testify to the specifics of the verbal exchange between the Respondent and victim as he made a conscious decision not to be involved in such exchange. It would accordingly be unsurprising that PW2 Syed would not be able to testify in minute detail or give a blow-by-blow account as to what the verbal exchange was all about. Considering the context in which the comment was made, it appears odd that the trial judge would characterise him as being “evasive” for no other reason than providing an explanation as to why he may not be able to provide useful responses to questions focused on the exchange between the victim and the Respondent on 15 September 2013. On the matter of his inability to recall some of the matters, as the Respondent’s counsel himself observed, the matter had taken place a long time before the hearing, and, in those circumstances, it would be unlikely that any individual would be able to recall every single specific detail about the incident given the relatively long passage of time between the incident and the hearing.

60 As for PW6 Maggie, the trial judge found her to be more forthcoming but not objective as she would give evidence in support of the victim but would waver when faced with difficult questions. An example given by the trial judge was that of PW6 Maggie testifying that the victim was tactful, courteous and professional when PW5 Hanis testified that the victim had reacted negatively to the Respondent and was flustered. With respect, this appears, again, to be a misunderstanding of the evidence – as PW5 Hanis testified, the victim was very calm for most of the conversation between him and the Respondent and only started speaking with a slightly raised voice after the Respondent had repeatedly disobeyed his orders to drive off. PW5 Hanis also testified that between the Respondent and the victim, the former was “definitely” the more aggressive one. ³⁴ In short, just as PW6 Maggie intimated, the victim was, in fact, doing his best to be courteous and respectful in the face of unreasonable behaviour on the part of the Respondent, even if it would appear from PW5 Hanis’ evidence that he ended up frustrated by the Respondent’s obstinate behaviour. In any event, it bears noting that the trial judge was happy to discount the evidence of PW6 Maggie on this front while concomitantly being persuaded to rely on her evidence (as he did in various parts of the GD, albeit through ostensible mischaracterisations of PW6 Maggie’s evidence) as being supportive of his reasoning when it was aligned to the conclusions he arrived at.

61 As for the trial judge’s comment that PW6 Maggie would waver when it came to answering difficult questions, the singular example that the trial judge offered in support of his conclusion in fact lent further credence to PW6 Maggie’s testimony. The exchange in question ³⁵ pertained to PW6 Maggie’s clarification that she did not see the actual physical contact between the bumper and the victim’s legs, that she only saw the vehicle moving towards the victim and had assumed, because he had stumbled, that contact must have taken place. It is difficult to see how this could form the basis of the trial judge’s conclusion that her testimony was unreliable – indeed, if nothing else, the fact that she had clarified that it was an inference on her part (and, the Appellant might add, a very logical inference at that), rather than something she saw with her own eyes, lends a certain rigour to her evidence for it suggests a willingness and ability on her part to clarify as to what she precisely saw. If she were really attempting not to be objective, she would have insisted that she saw the actual physical collision take place.

There is, however, a difference between an assessment of a witness’s credibility where it is based on his demeanour and where it is based on inferences drawn from the internal consistency in the content of the witness’s testimony or the external consistency between the content of the witness’s evidence and the extrinsic evidence. In the latter two situations, the supposed advantage of the trial judge in having studied the witness is not critical because the appellate court has access to the same material as the trial judge. Accordingly, an appellate court is in as good a position as the trial court in such an instance to assess the veracity of the witness’s evidence: see PP v Choo Thiam Hock [1994] 2 SLR(R) 702 at [11].

[emphasis added]