1 The applicant in CA/CM 42/2024 (“CM 42”) sought permission to refer a question of law of public interest to the Court of Appeal pursuant to s 397(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”). Section 397(1) provides:

397.—(1) When a criminal matter has been determined by the General Division of the High Court in the exercise of its appellate or revisionary jurisdiction, and a party to the proceedings wishes to refer any question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case, that party may apply to the Court of Appeal for permission to refer the question to the Court of Appeal.

2 The issue before us was whether the reference raised by the applicant related to a “question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case”.

3 In respect of the requirement in s 397(1) that the reference must relate to a question of law of public interest, s 397(6)(a) of the CPC deems “any question of law regarding which there is a conflict of judicial authority” to be a question of public interest. In the present case, the applicant submitted that there was a conflict of judicial authority involving the proper interpretation of s 116A(1) of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”).

4 We dismissed CM 42 on 7 March 2025. We now set out in detail the grounds of our decision.

5 Following a trial before the District Court, the applicant was convicted of one charge of outrage of modesty brought under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed). The applicant appealed against the judgment by the District Judge in HC/MA 9043/2024 (the “Magistrate’s Appeal”).

6 The following facts were not disputed by the applicant in the Magistrate’s Appeal. The applicant’s daughter (the “Daughter”) and the victim (then 12 years of age) were having a sleepover in the Daughter’s bedroom on 27 February 2021. The victim and the Daughter were sitting on the top bunk of the bunk bed in the Daughter’s room and both of them were on the bed under a duvet. The Daughter used the applicant’s phone while the victim used her own phone to design outfits on a mobile phone application, Combyne. The applicant was in the same bedroom while the two of them designed outfits on Combyne. Sometime after midnight, the applicant was standing beside the bunk bed on the victim’s right.

7 According to the Prosecution’s case, during the time that the victim and the Daughter were designing outfits on the Combyne application in the Daughter’s bedroom, the applicant slipped his hand under the duvet and under the victim’s shorts and touched her thigh and vaginal area.

8 The Magistrate’s Appeal was heard by a Judge sitting in the General Division of the High Court (the “Judge”). The Judge dismissed the appeal and published his written grounds of decision on 6 November 2024 (GIL v Public Prosecutor [2024] SGHC 287 (the “Grounds”)). In the Magistrate’s Appeal, the applicant argued that data from his smart watch, an Amazfit GTR Smartwatch (the “Watch”), directly contradicted the victim’s account that the offence had occurred at around 1.57am (on 28 February 2021). The applicant’s position was that the data extracted from the Watch (the “Watch Data”) showed that he was asleep at 1.57am. In support of this argument, the applicant submitted that s 116A(1) of the Evidence Act required the court to presume from the Watch Data that he was in fact asleep at 1.57am. To be clear, we have understood the applicant’s choice of words, “data extracted from the Watch”, to be referrable to “an electronic record” within the meaning of s 116A(1).

9 The Judge first noted that the applicant had made no mention of the presumptions under s 116A of the Evidence Act before the District Court. As the parties had agreed to the admission of the Watch Data into evidence, the scope or application of s 116A of the EA was a non-issue (Grounds at [22]).

10 Be that as it may, the Judge, however, disagreed with the applicant’s submission regarding the presumption, observing that s 116A(1) would have led the court to presume that the report containing the raw Watch Data was an accurate reflection of the data actually captured by the Watch at the material time but not whether the data captured by the Watch was a true and accurate reflection of the applicant’s activities between 27 February 2021 and 28 February 2021 including whether he was asleep at the material time (Grounds at [24]). The presumption in s 116A(1) did not provide any basis for the court to further presume that the data captured by the Watch was accurate and reliable as to the Watch user’s activities at the material times. He observed that in the absence of any evidence to show the reliability of the manner in which the Watch captures and processes the data to determine whether the Watch user is asleep or awake, the court was not in a position to assess the reliability of the Watch Data which had been admitted into evidence (Grounds at [30]).

11 The Judge also explained that even if he agreed with the applicant that the Watch Data showed that he was asleep at 1.57am, this would only show that the timing provided by the victim was inaccurate. Even if the victim was wrong about the timing, this would not prove that the incident could not have taken place at all. On the contrary, the Watch Data broadly cohered with the undisputed evidence that the applicant was in the bedroom together with the Daughter and the victim when they were using the mobile phones to design outfits on Combyne (Grounds at [33]).

12 The applicant sought permission on 4 October 2024 in CM 42 to refer a question of law of public interest to the Court of Appeal. The applicant sought to refer the following question (the “Question”):

13 Section 116A(1) of the Evidence Act provides:

14 In determining whether in the present application permission should be granted to refer the Question to the Court of Appeal, the following issues were before us:

(a) Was there a conflict of judicial authority concerning the proper interpretation of s 116A(1) of the Evidence Act? If this was answered in the affirmative, s 397(6)(a) of the CPC would deem this a question of public interest.

(b) Did the Judge’s determination of the Question affect the outcome of the case?

The applicant had to succeed on both issues for us to grant permission to refer the Question.

15 Counsel for the applicant, Ms Tan Jun Yin (“Ms Tan”), argued that the Judge’s interpretation of s 116A(1) conflicted with the decisions of Super Group Ltd v Mysore Nagaraja Kartik [2019] 4 SLR 692 (“Super Group”) and Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA (Yeh Mao-Yuan, third party) [2015] 1 SLR 338 (“Telemedia”).

16 We did not agree with Ms Tan’s contention that there was a conflict of judicial authority on the proper interpretation of s 116A(1) of the Evidence Act. We were of the view that the Judge’s reading of s 116A(1) was consistent with that of Telemedia and Super Group, which in turn was consistent with the legislative intent of s 116A(1) of the Evidence Act. We explain.

17 We begin with the legislative intent of s 116A(1). At the second reading of the Evidence (Amendment) Bill (Bill 2/2012), the Minister of Law, Mr K Shanmugam explained (Singapore Parl Debates; Vol 88, Sitting No 13; Page 1127 [14 February 2012] (K Shanmugam, Minister for Law)):

18 It is clear from this that the presumption applies to the accurate communication of the electronic record, not the veracity or truth of the data contained in that record. The Explanatory Statement to the Evidence (Amendment) Bill (Bill 2/2012) states:

The new section 116A(1) prescribes an evidential burden similar to sections 146 and 147 of the Australian Commonwealth Evidence Act 1995. Section 116A(1) is a restatement of the common law maxim praese-muntur omnia rite esse acta, which is the presumption that “mechanical instruments were in order when they were used”.

[emphasis in italics added]

19 The focus is thus on facilitating the admission of evidence produced by machines, specifically, by presuming that the machines which produced the relevant electronic records were in working order and thus accurately communicated the material. The rationale for the presumption does not extend to accepting that just because evidence is produced by machines which were in order and used properly, the substantive data or content contained in the electronic record is true and reliable.

20 The above passage from the Parliamentary Debates was cited in Telemedia (at [250]) and the Grounds (at [26]). We were of the view that the Grounds, Telemedia and Super Group were all consistent with the legislative intent of s 116A(1) of the Evidence Act.

21 Telemedia concerned a dispute between the plaintiff, Telemedia, and the defendant bank, Crédit Agricole. Telemedia was a customer of Crédit Agricole. In October 2011, Crédit Agricole transferred shares held in Telemedia’s account to the account of a third party. Telemedia alleged that by this transfer, Crédit Agricole had acted in breach of mandate. One of Crédit Agricole’s defences was contractual estoppel, which relied on a clause in Crédit Agricole’s general conditions that stated that transaction advices sent to a client would be deemed correct unless the client objected within a specified time frame. Crédit Agricole claimed that it sent transaction advices regarding the October 2011 share transfers to Telemedia, to which Telemedia did not object. Crédit Agricole relied on electronic records generated by its mailing system, the S2i system, to show that the transaction advices were issued and dispatched. It alleged that the S2i system would archive the documents, including transaction advices, in a “Print Log” and would also record the number of envelopes necessary for the documents which were generated in a “Control Log”. The Print Logs and Control Logs recorded that transaction advices for the transfers of 112.5m shares were generated at 10.46pm on 10 October 2011 and 10.25pm on 14 October 2011. Telemedia denied receiving the transaction advices, and contested the admissibility and reliability of those electronic records.

22 The applicant claimed that the High Court in Telemedia had applied s 116A(1) of the Evidence Act to presume the truth of the contents of the electronic records. In our view, this was not a correct reading of Telemedia.

23 The court in Telemedia considered the evidence in determining whether s 116A(1) applied; it applied the principle that only electronic records produced by a device or process that “is one that, or is of a kind that, if properly used, ordinarily produces or accurately communicates an electronic record” would fall within s 116A(1) (at [251]). It held that it was not necessary for an expert with knowledge and understanding of the technicalities of the system to establish that the system ordinarily produces or accurately communicates information of transactions (Telemedia at [255]). Indeed s 116A(1) was intended to facilitate the admission of such evidence without such cumbersome processes, as we explained above.

24 The court in Telemedia found (at [255]−[256]) that:

255 … Mr Michon’s evidence establishes first-hand that the S2i system both ordinarily produces and accurately communicates information of transactions by Crédit Agricole’s customers. The S2i system also generates the transaction advices automatically, so there is no question of proper operation. I do not think it is necessary for Mr Michon to have knowledge and understanding of the technicalities of the S2i system in order for his evidence to establish that the S2i system ordinarily produces/accurately communicates information of transactions.

256 This is, in my view, sufficient to trigger the presumption as to production and accurate communication in s 116A(1) of the EA….

[emphasis in original removed]

25 Mr Michon was the department head of Crédit Agricole’s S2i Mailing department; that department was responsible for maintaining Crédit Agricole’s S2i system, which processed, generated and dispatched the statements of accounts and transaction advices to customers of Crédit Agricole worldwide, including Singapore (at [243]).

26 The court in Telemedia noted that s 116A(1) presumes “that the electronic record in question was produced or accurately communicated by that process” (Telemedia at [248]). Notably, in reaching its conclusion that the transaction advices had been issued on the material dates, it did not rely only on the presumption and electronic records. The court explained that it considered the “evidence as a whole” (Telemedia at [257]−[262]). It had considered Mr Michon’s evidence that if dispatched mail did not get delivered, the undelivered envelopes would be returned to Crédit Agricole and to the best of his knowledge, no such undelivered envelopes were returned. Evidence such as the “Summary Tables” and “Postage Reports” relating to the material transaction advices were also before the court. It also considered Telemedia’s position that it did not receive the two October 2011 transaction advices but its witness had conceded during cross-examination that it had received all other transaction advices and statements sent by Crédit Agricole both before and after the disputed transaction advices.

27 Telemedia’s approach is consistent with the position that s 116A(1) only presumes that the electronic record in question was produced or accurately communicated by that process, and there is no presumption as to the truth of the content of the record. The electronic record is admitted as evidence and like other evidence, can be given no weight, little weight or critical weight depending on the facts of the case including explanations and other evidence presented to the court.

28 In Super Group, the plaintiff, Super Group Ltd, claimed that the defendant had signed a written agreement in April 2008 and brought an action against the defendant for breach of contract. The defendant’s case was that he did not sign any written agreement. The plaintiff’s case was that the parties met on 2 April 2008 and the following day, on 3 April 2008, the plaintiff’s director, Mr Lee, sent an email to the defendant enclosing a document recording in writing the agreement reached on 2 April 2008. The main issue was whether the plaintiff and the defendant had entered into an agreement on 2 April 2008.

29 As the parties did not execute the alleged April 2008 written agreement on the same occasion and in each other’s presence, the plaintiff did not have direct evidence that the defendant signed the April 2008 written agreement. Hence the plaintiff relied on circumstantial evidence to establish this fundamental fact. It relied on the emails exchanged between its director Mr Lee and the defendant in 2008 and in April 2009, as well as the defendant’s attempts to perform his obligations under the alleged agreement by his efforts including issuing post-dated cheques.

30 The plaintiff sought to rely on electronic records which were the email headers containing metadata recording, amongst other things, the date and time on which the defendant sent a disputed email to Mr Lee and the date and time on which Mr Lee sent a disputed email to the defendant’s email address. The defendant argued that all the emails were fabricated. The authenticity of the emails was thus disputed.

31 The court in Super Group first addressed the question of whether the emails were authentic. If the emails were fabricated, they were not authentic and could not be admissible as evidence. Based on the direct evidence of Mr Lee and the defendant as well as their respective experts on this issue, the court found that the emails were authentic. It then considered whether the emails were admissible. The plaintiff relied on the presumption in s 116A(1). It was clear that the court applied the presumption in s 116A(1) to the issue of admissibility of the evidence. The court explained (Super Group at [95]−[96]):

95 … The legislative purpose of s 116A(1) of the Evidence Act is to facilitate the use of electronic records as forensic evidence … In the case of an email, the electronic record is not the human-readable contents of the email in printed form. The electronic record is the computer-readable version of the email in its original electronic form. If an electronic record comes within the scope of s 116A(1), rendering that electronic record human-readable by using a standard email client to print it on paper does not create new evidence for which a new test of admissibility needs to be applied. The printed version does nothing more than set out the electronic record in human-readable form. It is not suggested that the printed versions are in any way inaccurate renditions of the human readable contents of the emails.

96 Applying s 116A(1) of the Evidence Act to the facts before me, I am satisfied that the presumption operates in the plaintiff’s favour. I note that the provision was intended to avoid requiring the person who relies on the electronic record to have detailed technical knowledge of the process behind its production. Therefore, for the presumption to apply, it suffices that that person has a broad understanding of the process (Telemedia Pacific Group at [255]). Mr Lee’s evidence as the lay operator of his email system (the process), comprising both his personal computer (the hardware) and the email client (the software), suffices to satisfy me that the device or process in question which produced the disputed electronic records in his email inbox or sent folder was one which ordinarily produces electronic records.

32 The court in Super Group considered the direct evidence from Mr Lee and the defendant, as well as evidence from each party’s expert witness, before concluding that the defendant had failed to rebut the presumption in s 116A(1) of the Evidence Act.

33 Having “found on the threshold issue that all of the emails on which the plaintiff relies are authentic and admissible” (Super Group at [103]), the court proceeded to determine the two principal issues before it, which were: whether the defendant signed the April 2008 written agreement and whether the plaintiff’s action was time-barred (Super Group at [104] and [145]). In determining the two issues, the court considered all the relevant evidence, including the evidence relating to the alleged forgery of the signature.

34 In this present application, Ms Tan submitted that the court in Super Group invoked s 116A(1) to find that the content in the email headers (ie, the date and time on which the emails were sent) were true. She argued that the court’s framing of the issue in Super Group, ie, whether it should “admit the headers of the disputed emails as evidence of the truth of their contents” pursuant to s 116A(1) (at [91]), was tantamount to presuming the truth of their contents. Thus she submitted that the presumption applied to both the admissibility and reliability of the electronic evidence adduced.

35 We did not agree with Ms Tan’s reading of Super Group. In our view, the court in Super Group applied s 116A(1) to admit the email headers into evidence which still had to be assessed for reliability and the weight to be placed on them. We point out that as a matter of language, to say that the email headers were admissible being primary evidence was not the same as saying that the contents were true. As stated earlier, the presumption applied to admit the electronic record, and like other evidence, the admitted evidence can be given little weight or critical weight depending on the facts of the case and all the relevant evidence before the court. It bears noting that the court in Super Group had, when determining whether the defendant had failed to rebut the presumption in s 116A(1), considered the direct evidence from Mr Lee, the defendant and their expert witnesses. The totality of the evidence supported the reliability of the plaintiff’s electronic evidence when taken together.

36 In the present case, all that s 116A(1) of the Evidence Act would give rise to is a presumption that the raw data measured by the Watch in the form of the applicant’s heart rate and step count had been accurately communicated in the Watch Data. Even if it was accepted that the Watch could accurately measure and capture the wearer’s heart rate and step count, what to make of such data so communicated in interpreting the applicant’s activities was an entirely different matter. At the hearing, we asked Ms Tan how the raw data accurately showed that the wearer of the Watch was in light sleep or deep sleep or awake, as the case may be. She responded that she did not have the technical knowledge of the workings of the Watch to provide such answers.

37 In our view, s 116A(1) would not give rise to any presumption that the Watch had accurately analysed that the applicant was asleep based on certain readings or data that the Watch had measured. Indeed, as the Judge observed, the statement of agreed facts explicitly included a caveat that the expert forensic consultant was unable to testify about the accuracy or significance of the Watch Data (Grounds at [29]).

38 At the hearing, we asked Ms Tan: on her proposed interpretation of s 116A(1), if a person were to send an email stating that the recipient owed him or her $10,000, would it be presumed that the recipient did in fact owe a debt of $10,000, since the contents of the electronic record would be presumed to be true? In response, Ms Tan explained that she was not seeking to stretch s 116A(1) to the point of obviating the need to prove that “human inputted” contents are true. She attempted to draw a distinction between data that was produced by machine input and data that had come from human input. In her view, in so far as data from human input was concerned, the truth of the underlying contents had to be proven, whereas if the information was produced by a machine independently without any human input, that information must be presumed to be the truth.

39 We did not agree with this submission. There is no basis to read such a distinction into s 116A(1). Just because a machine produced the analysis does not make the analysis reliable or more reliable than analysis carried out by the human mind. Thus, to prove reliability, evidence must be provided which would enable the court to assess the reliability of the conclusions produced by the machine. Indeed, the Judge had explained, and we agreed with him, as to the sort of evidence and explanation that ought to have been provided on the present facts (at [29]):

[emphasis added]

40 To illustrate, if evidence and explanations including, say, the type of data entered and the algorithms used by the machine for analysis do not satisfy the court that an accurate result was produced, the court might not place any weight on the data at all. Suppose, hypothetically, a watch-like device claims to be capable of accurately calculating or analysing the wearer’s emotions at any point in time – does s 116A(1) presume the “emotions” recorded by the device to be “true” and reliable? It does not. In fact, the “lack of algorithmic transparency comes into direct conflict with due process considerations, which require that tools used … be comprehensible and fair” (Katherine B Forrest, When Machines Can Be Judge, Jury and Executioner: Justice in the Age of Artificial Intelligence (World Scientific Publishing, 2021) at 24). Contextualised to the present facts, as no evidence was proffered on how the Watch produced the data that the wearer was in the various stages of sleep or awake at the relevant times, such data had not been proved to be reliable. The presumption in s 116A(1) does not dispense with or shift the burden to prove the reliability of the data.

41 Ms Tan argued that the Judge’s determination of the Question affected the outcome of his case. She submitted that the “determination of the High Court” need not have been a final judgment or sentence; rather, all that was required was that the answer to the question of law had been one of the grounds or bases on which the High Court had decided the matter before it. She further argued that the Judge’s allegedly incorrect answer to the Question led him to disregard the Watch Data, and therefore fail to consider if any reasonable doubt had arisen in the Prosecution’s case as a result of the Watch Data. Her submission was that this was one ground for the dismissal of the applicant’s appeal before the Judge, which was sufficient for it to have “affected” the outcome of the case.

42 As we were of the view that there was no conflict of judicial authority, the applicant had failed to show that the reference related to a question of law of public interest. This was sufficient to dispose of the reference, but we will go on to make further observations on the Judge’s views on this point.

43 We were of the view that the Question did not affect the outcome of the case because the Judge made clear that, even if he had answered the Question in the affirmative (ie, he presumed that the Watch accurately reflected the times at which the applicant was asleep), there was still sufficient evidence to show that the victim’s evidence was credible (Grounds at [35]−[41]). If the applicant was indeed asleep at 1.57am, this would only have demonstrated that the victim was wrong about the exact timing of the offence. This discrepancy was not egregious given that on the applicant’s own evidence, he was in the Daughter’s bedroom from about 11.27pm on 27 February 2021 to 1.03am on 28 February 2021 (Grounds at [33]). Having applied his mind to the evidence before him as a whole, the Judge found that even if he had presumed that the Watch accurately reflected the applicant’s sleeping period, the outcome of the case would not have changed. It followed that the Judge’s determination of the Question had not affected the outcome of the case.

44 Thus, the applicant had failed to show that the Judge’s determination of the Question affected the outcome of the case, which is required for a reference to be made to the Court of Appeal under s 397(1) of the CPC.

45 Having found that there was no conflict of judicial authority concerning the proper interpretation of s 116A(1) of the Evidence Act, and that in any event the determination of the Question did not affect the outcome of the case, we dismissed the applicant’s application for permission to refer the Question to the Court of Appeal.

46 We noted that as there had been no stay of execution of the sentence, the applicant had already started serving his term of imprisonment and had received caning. Ms Tan informed us that he had intentionally taken this course to avoid any further delays to being able to join his family in the UK.

47 We made no order as to costs.