District Court of Singapore

Public Prosecutor v Lee Wei Yang, Sean
[2021] SGDC 137

Criminal law – Offences – Penal Code – Rioting

Evidence – Witnesses’ credibility

Evidence – Proof of evidence – Onus of Proof

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9095/2021/01.]

19 July 2021

District Judge Edgar Foo:

Introduction/Background

1 Lee Wei Yang, Sean, a 29-year-old male Singapore Citizen (“the Accused”), had claimed trial to the following charge:

You … are charged that you, on 25 March 2017, at or about 3.49 a.m., at the ground floor of Singapore Land Tower located at 50 Raffles Place, Singapore, were a member of an unlawful assembly, together with:

(a) Cyrus Casper Francis;

(b) Brandon Gan;

(c) Steven Guo Shenzhong;

(d) Nelson Lee Cheng Feng;

(e) Alvin Raj Aloysious Conzaga; and

(f) Lee Yi Yang, Dean,

whose common object was to cause hurt to one Tan Rong Sheng Royson and one Yeo Yuan Yuan, and in the prosecution of the said common object of the unlawful assembly, some of you had used violence, to wit, by punching and kicking the said Tan Rong Seng Royson and said Yeo Yuan Yuan, and you have thereby committed an offence punishable under section 147 of the Penal Code (Cap 224, 2008 Rev Ed).

2 At the conclusion of the trial, I had found that the Prosecution had failed to prove their case against the Accused beyond a reasonable doubt and I have granted the Accused a discharge amounting to an acquittal.

3 The Prosecution being dissatisfied with my decision, had filed their Notice of Appeal against my acquittal of the Accused. Accordingly, I set out my reasons for my acquittal of the Accused.

Parties’ evidence and exhibits

Prosecution’s evidence and exhibits

4 The Prosecution had called on a total of 7 witnesses in their case against the Accused. They were:

(a) PW1 - Tan Rong Sheng Royson, one of the victims;

(b) PW2 - Dr Loo Lip Kuan, the doctor who examined both the victims PW1 and PW3;

(c) PW3 - Yeo Yuan Yuan, one of the victims;

(d) PW4 - Ng Han Bin, a witness;

(e) PW5 - Quek Yun Yi (“Queenie”), a witness;

(f) PW6 – Nelson Lee Cheng Feng, one of the co-accused; and

(g) PW7 – Station Inspector Lee Jansen, the investigation officer.

5 I also noted that the Prosecution had listed 3 other witnesses, namely Cyrus Casper Francis (“Cyrus”), Brandon Gan (“Brandon”) and Alvin Raj Aloysious Conzaga (“Alvin”) in their List of Witness which was tendered in court but they had decided not to call these witnesses and they had offered these 3 witnesses to the Defence.

6 In addition to the 7 witnesses, the Prosecution had also tendered 7 exhibits in support of their case against the Accused:

(a) Exhibit P1 – the First Information Report bearing no. A/201703251/0054;

(b) Exhibit P2 – the Medical Report on PW3 dated 21 July 2017 prepared by Dr Andrew Yam, a specialist hand surgeon;

(c) Exhibit P3 – the CCTV footage from Singapore Land Towers (taken from outside the glass door);

(d) Exhibit P4 – the Medical Report on PW1 dated 3 May 2017 prepared by PW2;

(e) Exhibit P5 – the Medical Report on PW3 dated 3 May 2017 prepared by PW2;

(f) Exhibit P6 – a sketch plan of the scene prepared by PW7, the investigation officer; and

(g) Exhibit P7 – 7 photographs of Singapore Land Tower taken by PW7, the investigation officer.

7 The Prosecution’s evidence could be summarised as follows: -

PW1 – Tan Rong Sheng Royson

8 PW1 was a bank manager by profession and he worked for State Street Bank^{[note: 1]}. On 25 March 2017, PW1 had gone to a club known as Skyline at Singapore Land Tower for a farewell celebration of a colleague who was leaving the bank. There were 8 persons in the group including PW3 who was then PW1’s girlfriend^{[note: 2]}. The other members of the group who went to Skyline club included Matthew French, Carles Kruse, Jermaine Cheong, Justina Ng^{[note: 3]}, PW4 and PW5. Except for PW3, the rest of the group were PW1’s colleagues from the bank^{[note: 4]}.

9 While the group was at Skyline club, PW1 had bumped into a guy, who was later identified as Brandon, who was one of the co-accused^{[note: 5]}. PW1 had bumped into Brandon when Brandon was passing by PW1’s table. Brandon had reacted aggressively, and he shoved PW1 causing PW1 to fly across the room^{[note: 6]}. When that happened, PW1’s friends and some club employees intervened. They separated the 2 of them and made them shake hands and make peace^{[note: 7]}.

10 PW1 also testified that after the incident, he was informed by some friends and employees of the club that after Brandon had shoved him, Brandon had also taken a metal ice scoop from an ice bucket and he wanted to continue charging at PW1 with the metal ice scoop^{[note: 8]}. PW1 testified that when he was involved in the shoving incident with Brandon at Skyline club, he did not know if Brandon was an employee or customer of Skyline club^{[note: 9]}. PW1 subsequently found out that Brandon was working for Skyline club^{[note: 10]}.

11 PW1 was unhappy about the incident and he went to his friend Mano who was the manager and co-owner of Skyline club and informed Mano of what had happened^{[note: 11]}. Mano then requested a club employee to bring Brandon to see both of them. When Brandon met up with Mano and PW1, Mano yelled angrily at Brandon and told him to leave the club. Brandon responded angrily with vulgarities and stormed out of the club^{[note: 12]}. After that, PW1 remained at the club and continued drinking with his friends^{[note: 13]}.

12 Later that night, after PW1 had left Skyline club with PW3, he was confronted by a group of more than 5 people at the lobby of Singapore Land Tower. PW1 and PW3 were at the lobby of Singapore Land Tower when they saw a group of people approaching them and shouting at them^{[note: 14]}. The group of people shouted vulgarities at PW1 and PW3^{[note: 15]}. PW1 also confirmed that the group which had initially approached him and PW3 consisted of Brandon, Steven Guo Shengzhong (“Steven”), Nelson Lee Cheng Feng (“Nelson”), Cyrus and Alvin (collectively called “the group of 5”)) and an unknown woman^{[note: 16]}. Brandon, Steven, Nelson, Cyrus and Alvin were the co-accused in this case.

13 When the group of 5 first approached PW1 and PW3, both PW1 and PW3 were confused as they did not recognise the group^{[note: 17]}. However, when the group of 5 confronted them, PW1 recognised Brandon as the person with whom he had an incident at Skyline club earlier and he realised what was happening^{[note: 18]}. Cyrus then shoved and pointed at PW1^{[note: 19]}. PW3 tried to defend PW1 by pushing the group of 5 back^{[note: 20]}. Shortly after that, PW1 was punched in the face^{[note: 21]}.

14 After PW1 was punched in the face, he immediately covered his head to protect himself^{[note: 22]}. However, he was continuously punched multiple times^{[note: 23]}. PW1 was not able to tell exactly who had punched him^{[note: 24]}. During this time, PW1 had tried to block off the punches from his assailants and he also tried to pull himself away from the group of 5^{[note: 25]}. PW3 tried to defend them and she tried to fight off the group of 5 and block them from PW1^{[note: 26]}. PW1’s instinct was to defend himself and run away given that he was outnumbered by the group of 5^{[note: 27]}. So, he struggled to break free from the group of 5^{[note: 28]}. PW1 said that he did manage to shake off the group of 5 and he saw an opening and tried to pull himself from the group of 5 and run away from the group of 5^{[note: 29]}. However, as he was running away from the group of 5, he felt someone grabbed him around the waist from behind and preventing him from getting away^{[note: 30]}. When PW1 was struggling to get away, he was not aware of what had happened to PW3^{[note: 31]}.

15 PW1 testified that at the time of the incident, he did not know who had assaulted him. However, he was able to identify 2 of his assailants. One was the Accused^{[note: 32]}. The other was Brandon, whom PW1 had a shoving incident earlier at Skyline club^{[note: 33]}.

16 PW1 also testified that the Accused was not part of the group of 5 who had assaulted him and PW3 initially. PW1 said that the Accused was following the group of 5 and he “looked like he was bracing himself for something”^{[note: 34]}. PW1 also testified that the Accused did not hit him ^{[note: 35]}. PW1 also confirmed that before he was assaulted by the group of 5, he did not have any interaction or altercation with any of the group of 5 except for Brandon^{[note: 36]}.

17 When PW1 was struggling to break away from the group of 5, he felt someone holding him by the waist and he eventually fell to the ground. PW1 testified that he was charging ahead to get away from the group and when he realised, he could not move forward. PW1 then turned around and he saw that the Accused was holding onto him^{[note: 37]}. PW1 saw the Accused hugging him from the back around his waist^{[note: 38]}. The Accused had grabbed PW1 from the waist from the back^{[note: 39]}. Another co-accused, Lee Yi Yang, Dean (“DW2”) also restrained PW1’s neck as he was trying to run away from the group^{[note: 40]}. After PW1 had fallen to the ground, the rest of the group of 5 caught up with him and they continued to punch and kick him^{[note: 41]}. PW1 had testified that he was not able to break away from the group because he was grabbed around the waist by the Accused^{[note: 42]}. The Accused had grabbed PW1’s waist and DW2 had restrained his neck to prevent him from running away^{[note: 43]}. PW1 testified that he was planning to run away from the group of 5 when he was grabbed by the Accused and DW2^{[note: 44]}. PW1 was of the view that the Accused had grabbed him from behind to prevent him from running away and that both the Accused and DW2 had used a great deal of force in doing so^{[note: 45]}. PW1 also testified that he could have run away from the group of 5 if he was not grabbed in the waist by the Accused^{[note: 46]}.

18 PW1 also testified that when he was able to run away, the group of 5 had stopped assaulting him and were not actively pursuing him^{[note: 47]}. This was until the Accused grabbed him from behind and had caused him to fall to the ground^{[note: 48]}. PW1 had only managed to run for less than 5 metres before he fell to the ground with the Accused grabbing him^{[note: 49]}. After that, the group of 5 caught up with PW1 and they continued to punch and kick him until he fell to the ground^{[note: 50]}. PW1 also testified that the Accused was still holding onto him when the rest of the group caught up with them and the Accused then released PW1 with the group of 5 jumping in and hitting him^{[note: 51]}.

19 When PW1 fell onto the floor, he was kicked and punched in the head^{[note: 52]}. Steven also pulled his shirt^{[note: 53]}. PW1 did not know what the Accused was doing after he had released PW1 as PW1 was covering his head and trying to defend himself from the kicking and punching^{[note: 54]}.

20 After a while, the attack stopped and PW1 managed to pick himself up and he ran away from the group of 5 to a nearly roadside^{[note: 55]}. PW3 and PW1’s friends managed to catch up with PW1 and PW1 asked PW4 to call for the police^{[note: 56]}. The police arrived a short while later followed by the paramedics. They assessed PW1 and PW3’s injuries and took them to a nearby hospital for medical examination. However, when PW1 and PW3 arrived at the hospital, they were informed by the hospital staff that they would need to wait for about 5 hours before they could receive medical treatment. PW1 and PW3 then decided to make their way to Mount Elizabeth Novena Hospital, which was a private hospital, for medical treatment instead^{[note: 57]}.

21 At Mount Elizabeth Novena Hospital, PW1 was examined and treated by PW2. PW2 had prepared a medical report on PW1 which was tendered by the Prosecution at trial and admitted and marked as Exhibit P4^{[note: 58]}.

PW2 – Dr Loo Lip Kuan

22 PW2 was a resident medical officer at the Emergency Department of Mount Elizabeth Novena Hospital. PW2 had been working as a medical doctor since 2006. On 25 March 2017, PW2 was on duty at the Mount Elizabeth Novena Hospital and he had attended to PW1 and PW3.

23 PW2 had examined PW1 at 5.21 am on 25 March 2017 and he had found multiple swellings, bruises and scratch marks over PW1’s face and head^{[note: 59]}.

24 PW2 testified that PW1 had informed him that he and PW3 had attended a farewell drinking party at a club at Raffles Place and he had gotten into an argument with a man at the club. The man had gathered a group of men to assault him outside the club^{[note: 60]}.

25 PW2 testified that when he examined PW1, he was able to understand PW1 as PW1 was relevant and coherent^{[note: 61]}. PW2 also testified that PW1 was under the influence of alcohol with alcohol fetor (which meant he could smell PW1’s alcohol breath)^{[note: 62]}.

26 PW2 had also conducted a Glasgow Coma Score (“GCS”) on PW1 and PW1 had achieved a GCS of 15/15. PW2 testified that the GCS was based on spontaneous eye opening (4 points), verbal response (5 points) and motor response (6 points). PW2 was of the view that PW1’s GCS showed that PW1 was fully alert^{[note: 63]}. PW2 said that he conducted the GCS on PW1 as part of his medical examination on PW1 because PW1 had sustained head injuries from the assault^{[note: 64]}. However, PW2 was not able to comment on PW1’s GCS at the time of the actual assault^{[note: 65]}.

27 On the issue of whether PW1 was intoxicated, PW2 explained that doctors would use the term “intoxicated” to describe a patient who was drunk. “Intoxication” meant that the alcohol had affected the patient’s mental state, or the patient had impaired cognitive function^{[note: 66]}. During cross-examination, PW2 confirmed that he could not use the GCS to determine if a person was drunk. The GCS would also not give any indication of impaired perception and it was also unable to determine the ability to process information^{[note: 67]}.

28 In the present case, PW2 was of the view that PW1 was not “intoxicated” when he examined PW1 as PW1 was fully conscious and alert at the time of examination^{[note: 68]}. PW2 was of the view that PW1 was not “intoxicated” based on PW1’s GCS and neurological examination^{[note: 69]}. As for neurological examination, PW2 explained that a neurological examination was the examination of a person’s brain function^{[note: 70]}. The neurological examination was an assessment examination that tested the body sensory and motor functions. In the present case, PW2 had asked PW1 to do certain things and follow commands to assess if PW1 had deficits in neurological functions^{[note: 71]}. For example, PW2 would ask PW1 to move his facial muscles, upper and lower limb etc.

29 As regards to the level of alcohol inside PW1’s body at the time of the medical examination, PW2 testified that he was unable to determine the level of alcohol in PW1’s blood at that time^{[note: 72]}. PW2 also confirmed that no tests were done on PW1 to determine the level of alcohol in his blood^{[note: 73]}.

30 As regards to the injuries suffered by PW1, PW2 was of the view that PW1’s injuries were consistent with the history which was provided by PW1^{[note: 74]}.

31 PW2 also examined PW3 and prepared PW3’s medical report. PW3’s medical report was tendered by the Prosecution at the trial and was admitted and marked as Exhibit P5. PW2 had found that PW3 had suffered mild tenderness over the mid-carpal at her right wrist. She also had tenderness over her right 3^rd, 4^th, and 5^th metacarpal bones with swelling. Bruises could also be seen at the right 3^rd metacarpal bone^{[note: 75]}.

32 PW3 had informed PW2 that she and PW1 had an argument with a man at a club and the man was asked to leave the club. Later, a group of about 10 men had waited for her and PW1 outside the club and had attacked them^{[note: 76]}.

33 PW2 testified that PW3 was alert and oriented when he examined her. PW2 also noted that PW3 was under alcohol influence with alcohol fetor. However, PW3 was fully conscious and knew of her whereabouts, the time of the day and the people that she spoke to^{[note: 77]}. PW2 conducted a GCS on PW3 and she scored a GCS of 15/15^{[note: 78]}. PW2 also noted that when he saw PW3, she was in tears. PW3 was also mildly in pain and she was still in shock from the incident^{[note: 79]}.

34 PW2 testified that PW3 did not inform him as to who had injured her when he was examining her. PW3 only told PW2 that someone had grabbed her and pulled her away and had shoved her to the ground^{[note: 80]}. After that, PW3 had struggled to get back to help PW1^{[note: 81]}.

35 PW2 testified that when he saw PW3 at 5.51 am, PW3 was not intoxicated at the time of the examination. She was coherent in her speech, oriented and was in full control of her coordination^{[note: 82]}.

36 PW2 testified that he had examined PW1 and PW3 in different rooms and the rooms were separated by walls and doors to ensure privacy. PW2 also said that he had examined PW1 and PW3 on separate occasions and at different timings^{[note: 83]}. PW2 also explained that Mount Elizabeth Novena Hospital had in place a triage system where the nurse would see a patient first and for more urgent cases, the patient would be brought to the observation room or the resuscitation room where the doctor would treat the patient immediately^{[note: 84]}. In the present case, PW1 was brought directly into observation room and treated first because he was observed by the triage nurse to be suffering from head injuries and there was swelling on his head^{[note: 85]}.

37 PW2 noted that when he examined PW3, her history appeared similar and identical to the history given by PW1^{[note: 86]}.

38 On the issue of whether the victims were drunk, PW2 testified that if a patient was drunk, the patient would be unable to process information and they would exhibit other symptoms such as incoherent speech, being unable to speak clearly and being unable to coordinate movements. PW2 said that he did not observe any of such symptoms in both PW1 and PW3 when he examined them on 25 March 2017^{[note: 87]}.

PW3 – Yeo Yuan Yuan

39 PW3 had been working as an analyst in DBS bank for 5 years^{[note: 88]}. On 25 March 2017, PW3 had gone to Skyline club with PW1 and some of his colleagues to celebrate a colleague’s farewell. PW3 recalled that the people who had attended the farewell included PW4, PW5, Justina, Jermaine and Mathews. All these people were PW1’s colleagues^{[note: 89]}. They had gone to Skyline club after dinner and they had arrived at Skyline club before midnight^{[note: 90]}.

40 At that point of time, PW1 was PW3’s boyfriend. While the group was at Skyline club, PW1 was pushed by someone (who was established to be Brandon) across the pathway and some bouncers from the club stopped the fight and they got PW1 and the person to apologise to each other and Brandon was later asked to leave the club^{[note: 91]}. PW3 confirmed that PW1 only had a disagreement/altercation with Brandon and no one else at Skyline club^{[note: 92]}. PW3 testified that PW1 did not have any interaction with Steven, Nelson, Cyrus or Alvin at Skyline club before the assault incident at the Singapore Land Tower lobby^{[note: 93]}.

41 PW3 said that she had left Skyline club with PW1, PW5, PW6 and Mano, who was the manager at Skyline club^{[note: 94]}. PW3 and PW1 were planning to go home but they were assaulted by a big group of people just outside Singapore Land Tower^{[note: 95]}.

42 PW3 testified that the Accused was with the group of 5 and he was trying to pull PW1 away from her so that the group could beat up PW1^{[note: 96]}. PW3 also testified that when the Accused pulled PW1 to the side, PW3 became separated from PW1 and the group of 54 went on to attack PW1 by kicking and punching him^{[note: 97]}. When that happened, PW3 wanted to pull PW1 back to her in order to protect him and she threw punches at the group to protect herself as well as to prevent the group from attacking PW1^{[note: 98]}.

43 PW3 testified that when she was with PW1 at the Singapore Land Tower lobby, PW1 saw PW4 and PW5 together and he pointed in their direction and indicated to PW3 that he wanted to go towards them^{[note: 99]}. At that time, PW3 noticed a group of people walking towards them and she saw that one of them was Brandon who had issues with PW1 at Skyline club^{[note: 100]}. PW3 could not say anything to PW1 as things happened very quickly^{[note: 101]}.

44 As the group was approached PW1 and PW3, PW3 heard Cyrus shouting at them. Cyrus was pointing to his chest, shouting vulgarities and he was saying “You dare to touch my brother”. PW3 believed he was referring to Brandon who was behind him^{[note: 102]}. PW3 noted that Cyrus’ tone was “loud and fierce”^{[note: 103]}. When Cyrus said those words, PW3 had wanted to move away as she knew that something was going to happen as they had a large group of people behind them^{[note: 104]}.

45 Cyrus then pushed PW1 and PW3 tried to sweep Cyrus’s hand away to protect PW1^{[note: 105]}. Nelson also pushed PW1. PW3 tried to protect PW1 by pushing him away from the group and pulling him behind her so that they could not attack him^{[note: 106]}.

46 Exhibit P3, the CCTV recording from Singapore Land Tower, showed a period where the group of 5 and PW1 and PW3 went off the screen^{[note: 107]}. PW3 testified that during this period, Cyrus and Alvin had proceeded to punch PW1’s face on each side and PW1 had fallen to the ground^{[note: 108]}. PW3 then punched both of them so that PW1 could get away from them^{[note: 109]}. They then kicked and punched PW1 while he was on the ground^{[note: 110]}. The rest of the group of 5 also joined in to kick and punch PW1^{[note: 111]}. PW3 tried to pull PW1 up and she threw punches at the group so that they could get away^{[note: 112]}. PW3 also testified that she could not remember exactly who had kicked and punched PW1, but she clearly remembered Cyrus and Alvin^{[note: 113]}. PW3 also confirmed that the Accused and DW2 did not join the group of 5 to kick and punch PW1 during the period from 03.49.07 till 03.49.13 hours^{[note: 114]}.

47 As the group of 5 continued to beat up PW1, PW3 tried to pull PW1 towards her but the group of 5 kept pulling PW1 away from her^{[note: 115]}. Around 03.49.16 hours, the Accused tried to pull PW1 away from PW3^{[note: 116]} and PW3 tried to grab onto PW1’s neck to pull him back towards her to protect him^{[note: 117]}. PW3 testified that the Accused had pulled PW1 away from her so that the group of 5 could attack him^{[note: 118]}. PW3 also testified that she thought that so long as she could stay close to PW1, she could stop the people from beating up PW1 and she could punch anyone by way of self-defence so that they could not get close to PW1 to beat him up^{[note: 119]}. PW3 did that because she thought that the group would not assault a woman^{[note: 120]}.

48 After the Accused had pulled PW1 away from PW3, the group of 5 caught up with them and they started beating up PW1 again^{[note: 121]}. PW3 recalled that the Accused had grabbed PW1 from the back^{[note: 122]}. PW3 also saw DW2 holding on to PW1’s neck^{[note: 123]}. PW3 tried to run towards PW1 to protect him^{[note: 124]}. After that, the group of 5 crowded around PW1 and they kicked and punched PW1 till he fell to the ground^{[note: 125]}. PW3 caught up with the group and she started punching the Accused as he was holding onto PW1^{[note: 126]}. PW3 testified that she was trying to pull PW1 towards her^{[note: 127]}. PW3 started punched everyone around PW1^{[note: 128]} and she also punched the Accused in the face a few times to get him to let go of PW1^{[note: 129]}. At that point of time, the Accused was still holding onto PW1^{[note: 130]}. PW3 testified that her only thought at that point of time was to stop people from getting close to PW1 and whoever was in front of her, she would just distract them by punching them^{[note: 131]}.

49 The Accused then grabbed PW3 from around her neck area and he pulled from the group and shoved her to the ground^{[note: 132]}. PW3 testified that when the Accused did that, her first instinct was to punch the Accused to get away from him and to get back to PW1^{[note: 133]}. PW3 was of the view that the Accused had pulled and shoved her to the ground to prevent her from going back to help PW1^{[note: 134]}.

50 After the Accused had shoved PW3 to the ground, PW3 tried to punch the Accused but the Accused proceeded to grab her right hand when she was punching him^{[note: 135]}. The Accused then pushed PW3’s right hand against her neck and throat area near the collarbone and causing her to suffer shortness of breath^{[note: 136]}. PW3 tried to punch the Accused in her own defence and the Accused pushed her around her chest area with quite a lot of force with his right hand and causing her to almost fall to the ground^{[note: 137]}. Mr X tried to pull the Accused away from PW3 as he saw that the Accused was holding onto PW3^{[note: 138]}. DW2 then pulled PW3 from the neck and threw her to the ground^{[note: 139]}. PW3 also said that after DW2 had pulled PW3 and thrown her to the ground, both DW2 and the Accused did not join the group of 5 to continue assaulting PW1 and they just stood at a distance and watched the group of 5 assault PW1^{[note: 140]}.

51 After the assault had ended, both PW1 and PW3 were sent by ambulance to Singapore General Hospital for medical treatment. However, as the Accident and Emergency Department at Singapore General Hospital was very crowded, PW1 and PW3 decided to make their way to Mount Elizabeth Novena Hospital to seek treatment instead^{[note: 141]}. PW1 and PW3 decided to make their way to Mount Elizabeth Novena Hospital because the nurse at Singapore General Hospital had informed them that they would have to wait for about 5 hours to receive medical treatment^{[note: 142]}. At Mount Elizabeth Hospital, PW3 was attended to by PW2. PW3 confirmed that Exhibit P2 was her medical report which was prepared by PW2 and she did suffer the injuries as stated in Exhibit P2^{[note: 143]}. PW3 also testified that PW2 had attended to PW1 when he was alone at the observation room at Mount Elizabeth Novena Hospital. PW3 also confirmed that PW2 saw PW1 at 5.21 am and herself at 5.51 am^{[note: 144]}. PW3 also confirmed that when she was at Mount Elizabeth Novena Hospital, there was no test done by the hospital to test the level of alcohol in her blood^{[note: 145]}.

52 As to her alcohol intake on the night of the incident, PW3 testified that while she did drink alcohol when she was at Skyline club, she had drunk moderately, and she was still sober at the time of the assault^{[note: 146]}. PW3 could not remember the exact amount of alcohol she had consumed at Skyline club^{[note: 147]}, but she was certain that she was not drunk as she usually controlled her drinking and she would not drink till she was drunk^{[note: 148]}. PW3 also testified that when she got drunk, she would feel giddy and her head would feel like it was spinning. On the day of the assault, PW3 did not feel that way^{[note: 149]}. As for PW1, PW3 testified that PW1 was coherent and he was able to speak to PW3 clearly and answer her questions before the assault took place^{[note: 150]}. PW3 also testified that she had spoken to PW1 just before the assault took place and PW1 had looked in the direction of PW4 and PW5 and he told PW3 that he wanted to go to where they were^{[note: 151]}.

PW4 – Ng Han Bin

53 PW4 was an intern with State Street Bank on 25 March 2017^{[note: 152]}. PW4 confirmed that he was the person who had lodged the First Information Report which was tendered by the Prosecution and marked as Exhibit P1^{[note: 153]}. PW5 had called the police because PW1 had been attacked by a group of people. PW1 was PW5’s colleague when PW5 was an intern at State Street Bank^{[note: 154]}. PW4 clarified that it was wrongly stated in Exhibit P1 that the incident location was at Baseline Pub. PW4 testified that he did inform the police that the incident location was at Skyline club and the police must have recorded the wrong incident location in Exhibit P1^{[note: 155]}.

54 PW4 had testified that on the night in question, a group of colleagues from State Street Bank had decided to hold a farewell party for PW5 as she was leaving the bank. The group had included PW4, PW5, PW1, Justina, Jermaine, Mathew and PW3, who was PW1’s girlfriend^{[note: 156]}. The group had first gone for dinner at a steak place called Armory at Beach Road^{[note: 157]}. PW3 did not attend the dinner at Armory^{[note: 158]}. The group then went to the Alchemist Bar Lab at Beach Road and Club Bang Bang near Suntec City before making their way to the Skyline club at Singapore Land Tower^{[note: 159]}. PW4 said that PW3 did not go to Alchemist Bar Lab with the group and she only joined the group later^{[note: 160]}.

55 At Skyline club, PW1 opened a table. Some of the group went to dance on the dance floor but PW4 remained at the table throughout the night^{[note: 161]}. PW4 was not aware of any fight between PW1 and any other person at Skyline club that night^{[note: 162]}.

56 PW4 testified that he left Skyline club with PW1, PW3 and Justina at about 3 am. When they reached the lobby of Singapore Land Tower, PW4 had noticed Mr X^{[note: 163]} harassing PW5 and insisting on sending her home^{[note: 164]}. PW4 tried to help PW5 by asking Mr X to go away^{[note: 165]}.

57 PW4 then heard shouting and commotion and he saw a group of people attacking PW1. PW4 saw PW3 trying to push the people away from PW1and he immediately rushed towards PW1 and started pushing off the attackers. PW4 saw Brandon throwing punches at PW1 and he pushed Brandon away^{[note: 166]}. PW4 also saw some of the attackers holding onto PW1 and some of them throwing punches at PW1 and PW3^{[note: 167]}.

58 PW4 testified that he was with PW5 and Mr X when the group of 5 approached PW1 and PW3. PW4 noticed that PW1 looked threatened when the group of 5 approached him^{[note: 168]}. PW4 testified that he did not initially notice what the group of 5 were doing to PW1 when they first surrounded PW1 as his attention was on Mr X^{[note: 169]}. Later, PW4 noticed that PW1 was having an altercation with the group of 5 and he was being attacked by the group of 5^{[note: 170]}.

59 PW4 testified that PW1 was attacked by a group of about 6 to 7 people at about 3.30 am in the morning of 25 March 2017 at the lobby of Singapore Land Tower^{[note: 171]}. The attackers had started to gang up on PW1 and the group of 5 were throwing punches, kicking, and holding onto PW1^{[note: 172]}. At that point of time, PW3 was standing beside PW1 and she had tried to help him when he was being attacked^{[note: 173]}. When PW3 tried to help PW1, PW3 was punched and pushed away by the group of 5 as she was in the way of their attack^{[note: 174]}.

60 PW4 saw some people throwing punches at PW1 and others trying to hold PW1 down^{[note: 175]}. PW4 identified the group of 5 who had punched and attacked PW1 as Brandon, Steven, Nelson, Cyrus, and Alvin^{[note: 176]}. PW4 also testified that there were 2 other persons who were part of the group and they were the Accused and DW2^{[note: 177]}. PW4 testified that the Accused was part of the gang who had attacked PW1 because he saw the Accused grab onto PW1 to prevent him from escaping from the group of 5^{[note: 178]}.

61 PW4 saw the Accused holding onto PW1 when he was trying to escape from the group of 5 and preventing him from escaping^{[note: 179]}. The Accused had grabbed PW1 by bear hugging PW1 from his back over his shoulders^{[note: 180]}. When the Accused was holding onto PW1, DW1 was also holding onto PW1’s head^{[note: 181]}.

62 PW4 testified that he saw DW2 whacking and throwing punches at PW1^{[note: 182]}. PW4 concluded that the Accused was preventing PW1 from escaping because the Accused had grabbed PW1 from behind and he had also grabbed PW1 by the shoulder area. PW4 noticed that when the Accused did that, PW1 was struggling to escape from his hug^{[note: 183]}.

63 PW4 also noted that PW1 had managed to avoid most of the attackers when he was trying to escape from them until the time the Accused held on to PW1^{[note: 184]}. After the Accused had grabbed PW1, PW1 could not escape and this allowed the group of 5 to catch up with PW1 and they continued to attack PW1^{[note: 185]}. PW4 also saw that PW1 was outnumbered by the number of attackers^{[note: 186]}. The group of 5 then proceeded to throw punches and pulled PW1 while the Accused was still holding onto PW1. PW4 also testified that he saw DW2 attacking PW1^{[note: 187]}.

64 I noted that when the Defence Counsel suggested to PW4 that the Accused was trying to help PW1 by pulling him away from the group of 5^{[note: 188]}, PW4 had disagreed with the Defence Counsel’s suggestion as he was of the view that if the Accused had truly wanted to help PW1 and stop the fight, the Accused should have pushed the attackers away rather than pull and grab PW1^{[note: 189]}.

65 PW4 also saw Mr X trying to help PW1when the Accused was holding on to PW1, Mr X had tried to help PW1 by pulling the Accused away from PW1. Mr X had grabbed the upper shoulder chest area around the Accused’s neck (i.e. the neck area)^{[note: 190]} to try and pull the Accused away from PW1. At that point of time, PW4 was holding on to Brandon to prevent him from attacking PW1. PW4 had held on to Brandon because he felt that Brandon was the biggest guy in the group, and he posed the biggest threat to PW1^{[note: 191]}.

66 PW4 saw that after the Accused had grabbed PW1, the group of 5 surrounded PW1 the second time. Both the Accused and DW2 were in the middle of the group^{[note: 192]}. PW3 was also in the middle of the group and she was trying to protect PW1 by pushing the attackers away^{[note: 193]}. At this juncture, PW4 saw the Accused holding on to PW1 and DW2 was also holding on to PW1 and attacking him^{[note: 194]}. PW4 also saw PW1 trying to defend himself and he was using his arm to block and trying to push the attackers away^{[note: 195]}.

67 PW4 then rushed to the centre of the group to help PW1 and he tried to push some of the attackers away from PW1^{[note: 196]}. PW4 could not remembered who he had pushed as the situation was quite chaotic. PW4 testified that he was just pushing away people without looking at who he was pushing^{[note: 197]}. When PW4 was pushing people away, he had a clear view of PW1^{[note: 198]}. PW4 testified in his EIC that he saw the Accused trying to attack PW1 by throwing punches at him while PW3 was trying to get in to help him^{[note: 199]}. PW4 also said that he saw DW2 throwing punches at PW1^{[note: 200]}. The group of 5 were also attacking PW1 and PW3^{[note: 201]}. However, I noted that during cross-examination, PW4 had changed his story and he clarified that he did not see the Accused hit PW1 during the attack^{[note: 202]}.

68 PW4 said that he tried to push the group of 5 away and he saw that PW1 had fallen to the ground^{[note: 203]}. The group of 5 continued to attack PW1 when he was on the ground^{[note: 204]}. PW4 also tried to pull Steven away from PW1 as Steven was grabbing on to PW1^{[note: 205]}. PW4 also noticed PW3 trying to get to the centre to help PW1 but she was pushed away by the Accused^{[note: 206]}.

69 With regard to PW3, I noted that PW4 had, in his EIC, testified that he saw both the Accused and PW3 hitting each other during the assault but he did not know who had hit who first^{[note: 207]}. However, when the Defence pointed out to PW4 that his testimony was contradicted by PW3’s testimony, PW4 clarified that what he had meant was that he had seen the Accused pull PW3 away^{[note: 208]}.

70 PW4 also testified that after the attack had stopped, he did hear arguments and people shouting^{[note: 209]} and he also saw that PW1 had bruises on his face and head^{[note: 210]}.

71 As regards to the video taken by PW5 on her handphone (“Exhibit D4”)^{[note: 211]}, PW4 noted that the Accused was filmed in Exhibit D4 as saying “I stop fight. I got hit”^{[note: 212]}. The Defence had suggested to PW4 that Exhibit D4 was proof that the Accused had stopped the fight. However, PW4 did not agree with the Defence’s position as he was of the view that PW1 could have escaped from the attackers if the Accused had not held on to PW1^{[note: 213]}. PW4 was therefore of the view that the Accused did not try to stop the fight^{[note: 214]}.

72 PW4 also acknowledged that Exhibit D4 showed the Accused was looking in the direction of PW5 when she was attempting to video the incident^{[note: 215]}. Exhibit D4 showed that the Accused was about one arm’s length away from PW5 and he could see PW5 filming the incident and Alvin trying to stop her from doing so^{[note: 216]}. However, PW4 was unable to comment on what was going through the Accused’s mind when he saw PW5 videoing the incident^{[note: 217]}.

73 PW4 testified that he did not know why the group had attacked PW1 and PW3 on that day^{[note: 218]}. PW4 also confirmed that he had not met the group of 5, DW2 or the Accused before the assault incident that night^{[note: 219]}.

PW5 – Quek Yun Li “Queenie”

74 PW5 was working as an intern in State Street Bank on 25 March 2017 and she was friends with PW4^{[note: 220]}.

75 On 25 March 2017, PW5 had gone to Skyline club with PW1, PW3, PW4, Jermaine, Justina and Matthew to celebrate the end of her internship at State Street Bank^{[note: 221]}. Before going to Skyline club, the group had gone for dinner at the Armoury. The group then made its way to Club Bang Bang before going to Alchemist Beer Lab^{[note: 222]} and heading towards to Skyline club^{[note: 223]}. PW5 said that the group had arrived at Skyline club just after midnight^{[note: 224]}.

76 At about 3 am, PW5 left Skyline club with Jermaine. She had decided to send Jermaine off as Jermaine had wanted to get a Grab ride home. After sending Jermaine off, PW5 was waiting at the ground floor of Singapore Land Tower for PW1 and the rest of the group to come down from Skyline club when Mr X approached her and started talking to her. PW5 did not know who Mr X was^{[note: 225]}. Later on, PW1, PW3, PW4 and some other colleagues came down to the Singapore Land Tower lobby^{[note: 226]}.

77 At about 3.45 am on 25 March 2017, PW5 was at the lobby of Singapore Land Tower with PW4 and they were talking to Mr X^{[note: 227]} when PW4 heard commotion and noises. PW5 turned towards the noises and she saw a group of people surrounding PW1^{[note: 228]}. The group then started to attack PW1 and they threw punches at PW1^{[note: 229]}. When the attack started, PW3 tried to help PW1 and she stood in front of PW1 and tried to push the people away. PW5 saw PW3 throwing punches at the group and pushing them away^{[note: 230]}. PW5 also saw PW3 blocking PW1 and pushing the group away from PW1^{[note: 231]}. PW5 saw PW3 pulling PW1 away from the group as PW1 was being hit by the group^{[note: 232]}. PW5 then went towards PW1 and the attackers and she tried to pull and push some of the people away from PW1^{[note: 233]}. At that time, the group of 5 had surrounded PW1 and one of them was still trying to punch him^{[note: 234]}. PW5 saw PW1 trying to defend himself and trying to move away from the group^{[note: 235]}. PW1 managed to move away from the group and he ran off. PW5 also saw other people who were in office-wear trying to stop the fight^{[note: 236]}. PW5 then saw the Accused move toward PW1 and grab him in a hugging gesture^{[note: 237]}. PW5 was of the view that the Accused had grabbed PW1 to stop him from running away. This was because the Accused had grabbed onto PW1’s arms^{[note: 238]}. PW5 was of the view that if the Accused had not grabbed PW1, PW1 could have run away from the group of 5^{[note: 239]}. PW5 testified that she was just 2 steps away from PW1 and the Accused when she saw what happened and she was facing the two of them^{[note: 240]}. PW5 saw PW1 moving backwards and trying to escape from the group of 5 when the Accused grabbed him from the back^{[note: 241]}. PW5 saw that the Accused had grabbed PW1’s arm in a way which had restricted his movement. PW5 testified that from the way that the Accused had grabbed PW1, it was clear that the Accused was not trying to help PW1 and that he was part of the group of 5^{[note: 242]}.

78 PW5 testified that she was looking at PW1 when he turned away and moved to the back of her. The group of 5 who were in front of PW5 then went towards PW1 and they continued to hit him^{[note: 243]}. PW5 grabbed Nelson and kicked him and she also pulled Brandon away to prevent them from reaching PW1^{[note: 244]}.

79 When PW1 was trying to run away from the group of 5, the Accused went towards PW1 from his behind and grabbed PW1 from behind to prevent him from running away^{[note: 245]}. PW5 said that when the Accused grabbed PW1 from the back, he was able to restrict PW1’s movement and PW1 was not able to turn and run off^{[note: 246]}.

80 PW5 testified that she saw the Accused grabbed and hugged PW1 around his shoulders^{[note: 247]}. The Accused then dragged PW1 a few steps back as PW1 struggled to break free and PW1 fell onto the floor^{[note: 248]}. When the Accused grabbed PW1, Mr X pulled the Accused from the back to try to separate PW1 from the Accused. PW5 saw that Mr X was trying to get the Accused to release PW1 so that PW1 could run off^{[note: 249]}.

81 PW5 testified that after the Accused had grabbed PW1, rest of the group of 5 surrounded PW1 and kicked him^{[note: 250]}. After the attack, PW1 managed to crawl out of the circle and the attack ended^{[note: 251]}. PW5 also took a video of the people who attacked PW1^{[note: 252]}. After the attack, PW5 saw that PW1 had bruises on his face and PW3 had a swell on her eye. PW3 also told PW5 that she had injured her finger or knuckle^{[note: 253]}.

82 PW5 testified that there were about 7 people in the group that had attacked PW1^{[note: 254]}. PW5 testified that the Accused was part of the group as he had grabbed PW1 from the back when PW1 was trying to run away from the group^{[note: 255]}. As for DW2, PW5 testified that DW2 was a part of the group because he was one of the people who had surrounded PW1 when he was punched^{[note: 256]}. DW2 was also standing next to the Accused when they were watching PW1 being attacked by the group of 5. Later, when the group of 5 surrounded PW1 a second time when he fell to the floor, DW2 was also part of the group that had surrounded PW1^{[note: 257]}.

83 During the attack, PW5 saw PW3 pushing and throwing punches at the attackers because they were hurting PW1^{[note: 258]}. PW5 testified that PW1 looked shocked when he was attacked^{[note: 259]}. PW5 also saw PW4 trying to stop the fight by pushing the attackers away^{[note: 260]}.

84 PW5 testified that although PW1 was intoxicated on the night of the incident, he was aware of his surroundings. Just before the attack, PW5 had noticed that PW1 was fine and he was ready to go home. PW5 said that it was the same for PW3 and PW4^{[note: 261]}.

85 The next day, PW3 informed PW5 that they were attacked because of what had happened at Skyline club. PW3 told PW5 that PW1 had bumped into Brandon at Skyline club and Brandon was not happy with PW1 and he had taken an ice scoop to throw at PW1^{[note: 262]}. PW5 said that she did not witness the incident between Brandon and PW1 at Skyline club^{[note: 263]}.

86 As for Exhibit D4, PW5 confirmed that she had recorded Exhibit D4^{[note: 264]}. PW5 testified that she had recorded Exhibit D4 shortly after PW1 was beaten on the floor and he had crawled out from the group of people who had surrounded him. PW5 had recorded Exhibit D4 because she had wanted to capture the faces of all the attackers^{[note: 265]}. PW5 testified that she had used her I-phone to record Exhibit D4^{[note: 266]}. PW5 confirmed that the person who had shouted “Who will protect you now” was Brandon and Mr X was the one who had said “OK Chill Chill”^{[note: 267]}.

87 PW5 testified that she did hear the Accused say, “I stop fight, yet I still got hit” in Exhibit D4. However, PW5 did not agree to the Accused’s statement that he had stopped the fight because she did not see the Accused stop the fight on that day^{[note: 268]}. PW5 also did not noticed the interaction between the Accused and PW3 on that day^{[note: 269]}.

88 PW5 testified that before she started recording Exhibit D4, she had taken out her handphone and she was waiting to capture the point where the group was attacking PW1 to start recording^{[note: 270]}. At that juncture, the Accused was about one step away from her, towards her right, and he was looking at her with her handphone camera in her hand^{[note: 271]}. After that, PW5 turned to her left to try and film the incident. When PW5 did that, the Accused was still beside her, save that her back was to him. Alvin saw what PW5 was doing and he pushed her handphone away to stop her from recording anything^{[note: 272]}. Alvin also told PW5 in a loud voice to stop recording^{[note: 273]}. PW5 then placed her phone close to her body and she continued to record the incident^{[note: 274]}. PW5 was of the view that as the Accused was just next to her, he would have seen Alvin trying to stop her from recording the incident^{[note: 275]}.

89 PW5 also testified that when Alvin shouted at her to stop filming, he would have attracted the attention of the people around him^{[note: 276]}. When Alvin stopped PW5 from recording, the Accused was only one step away from PW5 and he was facing them^{[note: 277]}. PW5 also testified that when she had wanted to record the scene, she had held her handphone with her hand stretched out and it was obvious to both Alvin and the Accused that she was taking a video^{[note: 278]}. I also noted from Exhibit P3 that PW5 had started filming Exhibit D4 shortly after the Accused had his shoving incident with PW3. It was clear from Exhibit P3 that the Accused was looking angry at that point of time. Exhibit P3 also showed the Accused walking away and making one round before walking back to where the group of 5 were^{[note: 279]}.

PW6 – Nelson Lee Cheng Feng

90 PW6 was employed by Creative Insurgence and he was working as a lighting technician at Skyline club on 25 March 2017^{[note: 280]}. PW6 had started his shift at 10 pm on 24 March 2017^{[note: 281]}. PW6 testified that he was working both as a promoter and lighting technician at Skyline club^{[note: 282]}. PW6 also testified that both Brandon and Cyrus were also working as promoters at Skyline club on the same night^{[note: 283]}. PW6 testified that if he had guests that night, he would text Cyrus so that he could earn commissions for his guests^{[note: 284]}. PW6 testified that Alvin and Steven were also at Skyline club that night. Alvin was on PW6’s guest list that night and Steven was on Cyrus’ guest list^{[note: 285]}. However, PW6 did not see DW2 and the Accused at Skyline club on the night of the incident^{[note: 286]}. PW6 testified that he was not aware of any incident at the Skyline club when he was working at the club that night^{[note: 287]}.

91 In his EIC, PW6 had testified that Brandon, Cyrus, Alvin, Steven, Dean, the Accused, and himself were part of the group that had beaten up PW1^{[note: 288]}. PW6 also testified that the whole situation was very messy on the night of the incident. PW6 had seen the Accused punch PW1 on at least one occasion, but he could not remember where the Accused had hit PW1^{[note: 289]}. PW also said that he saw the Accused grabbed PW1 when he was trying to escape from the group of 5 and defend himself^{[note: 290]}. PW6 testified that the Accused had grabbed PW1 because the group of 5 were trying to chase him to beat him up^{[note: 291]}.

92 With regard to the assault, PW6 testified, in his EIC, that the 7 of them (i.e. the group of 5, the Accused and DW2) had left Singapore Land Tower and they had gone to the smoking corner which was about 30 meters away from Singapore Land Tower for a smoke^{[note: 292]}. PW6 had identified the smoking area as area D in Exhibit D1(50)^{[note: 293]}. PW6 testified that the group did not arrange to meet at the smoking area and they just happened to meet there by chance^{[note: 294]}. When the group was at the smoking area, Cyrus had informed the group that PW1 had threatened to break his neck earlier on and he told the group “let’s go and teach him a lesson”^{[note: 295]}. When Cyrus said those words, PW6 had understood that Cyrus had wanted them to either scare or beat up PW1^{[note: 296]}. PW6 confirmed that all 7 persons were present when Cyrus said those words and all of them heard what Cyrus had said. PW6 said that they had heard Cyrus because he had sounded very agitated when he said those words. PW6 also said that all of them were listening to Cyrus because he was their friend^{[note: 297]}. However, I noted that PW6 had changed his story during cross-examination and he had said that said that both the Accused and DW2 were not with the group of 5 when they were at the smoking area and both of them were not around when Cyrus told the group that he wanted to teach PW1 a lesson^{[note: 298]}.

93 PW6 testified that when the group was still at the smoking area, Cyrus saw PW1 and his friends coming out of Singapore Land Tower and he pointed towards PW1^{[note: 299]}. The rest of the group looked in the direction of PW1 and Cyrus said, “this guy threatened to break my neck”. The group of 5 then decided to approach PW1^{[note: 300]}.

94 PW6 testified that as the group approached PW1^{[note: 301]}, Cyrus and PW6 were in front of the group^{[note: 302]}. Cyrus held his hand in a fist, and he told PW1 “I heard you wanted to break my neck”^{[note: 303]}. Cyrus then proceeded to push PW1^{[note: 304]}. PW6 shoved and pushed PW1 and he also shouted vulgarities and threatened PW1^{[note: 305]}. PW3 tried to push PW6 back. The rest of the group then proceeded towards PW1 to attack him^{[note: 306]}.

95 PW6 testified that the group of 5 then proceeded to punch PW1 and PW1 tried to escape from them^{[note: 307]}. PW3, who was present during the incident, tried to help PW1, who was her boyfriend, by pushing and fending the attackers away^{[note: 308]}.

96 When that was happening, the Accused and DW2 were standing there and watching the group of 5 throwing punches at PW1^{[note: 309]}. PW6 testified that the two of them did not rush in to attack PW1 but the Accused appeared to be trying to get into the group^{[note: 310]}.

97 PW6 also commented that PW1 appeared drunk as he did not run away when he had the chance^{[note: 311]}.

98 PW6 testified that when the group of 5 was attacking PW1, PW1 was trying to defend himself and he was moving backwards at the same time. PW6 was of the view that PW1 was moving backwards to prevent the group of 5 from beating him up^{[note: 312]}. As PW1 was moving backwards, the Accused went in, grabbed PW1 and pulled PW1 back^{[note: 313]}.

99 In his EIC, PW6 testified that the Accused had grabbed PW1 by the shoulders. PW6 said that the Accused had done that because he was friends with Cyrus, and he had wanted to beat up PW1^{[note: 314]}. However, during cross-examination, PW6 clarified that he only saw the Accused grab onto PW1 from Exhibit P3 and he could not remember if he had seen the Accused grabbing PW1 and holding onto PW1’s shoulder during the incident^{[note: 315]}.

100 PW6 testified during EIC that when the Accused grabbed onto PW1, Mr X pushed the Accused to help PW1^{[note: 316]}. However, during cross-examination, PW6 clarified that he only saw Mr X pushing the Accused from Exhibit P3 and he could not remember what Mr X had done during the incident^{[note: 317]}.

101 In EIC, PW6 testified that PW1 was trying to escape from the group of 5 when the Accused pulled him back. PW6 said that he was very sure that PW1 was trying to run away because the group of 5 was trying to beat him up^{[note: 318]}. When PW1 was trying to run away, PW6 was trying to catch up with PW1 as he had wanted to continue to beat PW1^{[note: 319]}. DW2 then went on to grab PW1. PW6 felt that DW2 was trying to help the group of 5 as they were chasing PW1^{[note: 320]}. PW6 testified that when the Accused and DW1 grabbed onto PW1, the group of 5 managed to catch up with PW1 and they surrounded him and punched and kicked him^{[note: 321]}. The Accused was also in the middle of the group when the group of 5 surrounded PW1.

102 In his EIC, PW6 also testified that he saw the Accused throw a punch at PW1^{[note: 322]}. However, PW6 did not see where the punch landed^{[note: 323]}. PW6 also said that he was 100% sure that the Accused had punched PW1 because he had seen it with his own eyes^{[note: 324]}.

103 However, during cross-examination, PW6 changed his story and he said that it was possible that the Accused was trying to help PW1 instead of helping the group of 5 and if the Accused was doing that, then it would be justified for the Accused to say “I got hit, I tried to stop fight”^{[note: 325]}. PW6 also said that he was unsure as to whether the Accused had punched PW1. PW6 also said that after viewing Exhibit P3, he realised that the Accused and DW2 were not with the group of 5 when Cyrus told them PW1 had threatened to break his neck^{[note: 326]}.

104 In re-examination, PW6 also changed his story from being 100% sure that he had seen the Accused punch PW1 at the scene to not being sure if the Accused had punched PW1. PW6 said that he had said those things in EIC because of Exhibit P3. PW6 said that he had seen the Accused pulling back PW1 in Exhibit P3 and he had assumed that the Accused had punched PW1^{[note: 327]}. PW6 clarified that he could not remember if he did see the Accused hit PW1 when he was at the scene^{[note: 328]}.

105 PW6 also changed his position on whether the Accused was part of the group that had attacked PW1 because “if I was wrong about where the Accused and DW2 was when Cyrus told us about PW1, then I wouldn’t be sure if the Accused was there to join us or help break the fight”^{[note: 329]}.

106 During re-examination, PW6 also clarified that when the group of 5 was at the smoking corner, the Accused and DW2 were nearby but PW6 did not know exactly where they were^{[note: 330]}. PW6 was also not sure if the 2 of them had heard Cyrus talk about teaching PW1 a lesson and it was possible that they might not have heard Cyrus^{[note: 331]}.

107 As regards to the relationship between the group of 5 and the Accused, PW6 testified that Cyrus was his colleague at Creative Insurgence. PW6 first got to know Cyrus at a club called Baliza in 2017. Cyrus had invited PW6 to join him as a promoter at Baliza. As a promoter, they were paid by the number of people they were able to invite to the club^{[note: 332]}.

108 PW6 testified Brandon was also his colleague at Creative Insurgence. PW6 got to know Brandon the same way he got to know Cyrus^{[note: 333]}.

109 As for Alvin, Alvin was their guest at Skyline club. He was their mutual friend. PW6 got to know Alvin a few months before the incident^{[note: 334]}.

110 As for Steven, PW6 got to know Steven through Cyrus. PW6 only met Steven on the night of the incident^{[note: 335]}.

111 As for the Accused, PW6 also got to know the Accused through Cyrus. PW6 had seen the Accused with Cyrus on several occasions at Skyline club. PW6 got to know the Accused a few months before the incident^{[note: 336]}. DW2 was an acquaintance of PW6. PW6 only got to know DW2 on the night of the incident. PW6 had found out that DW2 was the brother of the Accused only after the incident^{[note: 337]}.

112 PW6 testified that on the day of the incident, he did not see the Accused at Skyline club, but he recalled seeing the Accused at another club in Singapore Land Tower^{[note: 338]}. PW6 also did not remember seeing DW2 at Skyline club on the night of the incident. However, PW6 did see DW2 at around 3.47 am outside the Singapore Land Tower and DW2 was then waiting for the Accused^{[note: 339]}.

113 PW6 confirmed that he had pleaded guilty to a charge under section 143 of the Penal Code in relation to this incident and he was sentenced to 18 months’ probation^{[note: 340]}.

PW7 – Station Inspector Lee Jansen

114 PW7 was the investigating officer in charge of this case. PW7 had taken the photographs in Exhibits P7(1) to (7) and he also prepared the sketch plan Exhibit P6^{[note: 341]}. As to the location of the smoking corner, PW7 testified that he did check with Senior Security Supervisor Mr Hakim from Singapore Land Tower and Mr Hakim had confirmed that the dustbins at the smoking corner had been in the same location since April 2015^{[note: 342]}.

Exhibit P3 – the CCTV footage from Singapore Land Tower

115 The Prosecution also tendered a CCTV footage from Singapore Land Tower which had captured the incident on 25 March 2017. The CCTV footage had been admitted and marked as Exhibit P3. I had viewed Exhibit P3 and I noted the following events which were captured on Exhibit P3:

S/No	Time as shown in P3	Event
	Events which took place before the group of 5 confronted PW1
1	03.33.27	Alvin walked out of the glass door of the building.
2	03.33.27 to 03.33.42	Alvin walked across the screen to the left of the screen.
3	03.33.50	Alvin could be seen hovering around the left of the screen under “2017”.
4	03.33.58	Alvin walked towards Area A[note: 343] and he could be seen hanging around the area with some people.
5	03.34.40	PW3, PW1, PW4 and a lady in black walked out of the glass door of the building.
6	03.35.03	Nelson, the Accused and Steven walked out of the glass door and went to Area X[note: 344].
7	03.35.07	PW3 walked away from the screen. PW1 and PW4 was seen talking to some people outside the glass door.
8	03.35.23	PW3 came back onto the screen. PW1, PW4 was still talking to people.
9	03.35.21	PW3 entered the glass door to the building.
10	03.35.32 to 03.36.36	PW1 was talking to a Caucasian man and the Caucasian man wished PW1 goodbye and left.
11	03.36.37 to 03.36.59	PW1 walked away towards the area behind the pillar.
12	03.38.22	PW1 re-appeared, and he came out from the glass door.
13	03.38.25	PW1 walked into the glass door.
14	03.38.29	PW1 went out the glass door and he stopped next to the pillar. PW1 appeared to be looking around.
16	03.39.10	PW1 entered the glass door at 03.39.35.
17	03.39.47 to 03.39.53	PW1 went out of the glass door and he was seen saying goodbye to a bald Caucasian man.
18	03.39.53 to 03.40.57	PW1 could be seen chatting with some people outside the glass door.
19	03.40.57	PW3 went out of the glass door and she joined PW1 and the group of people he was chatting with.
20	03.40.57 to 03.41.18	At 03.41.18, PW3 was seen hugging PW1 outside the glass door.
21	03.41.20	Alvin and Cyrus appeared from the area behind Sculpture B and walked towards the same group of people (2 men and a plumb woman) who were talking to PW1 and PW3.
22	03.41.31	PW1 and PW3 entered the building through the glass door together.
23	03.41.40 to 03.41.43	Alvin and Cyrus joined the group of people who were talking to PW1 and PW3. PW1 and PW3 had left the group by this time.
24	03.41.57	Alvin and one of the men who was earlier talking to PW1 walked in the direction of Area X.
25	03.44.00 to 03.42.07	Cyrus walked out of the glass door and walking towards Area X
26	03.42.01 to 03.43.24	Alvin was seen talking to the plumb woman.
27	03.43.25	Alvin was seen walking away with the plumb woman in the direction of Area X.
28	03.44.10 to 03.44.40	Cyrus, Steven. Nelson, the plumb woman and 2 other persons (1 male and 1 female) appeared in Area C [note: 345] and they hung around Area C.
29	03.44.41	Alvin joined the group in Area C.
30	03.44.50	Brandon came out from the glass door. He was clearly agitated.
31	03.44.51 to 03.45.00	The group of 5 could be seen hanging around Area C. There were other un-identified people with them.
32	03.44.57	The Accused was seen walking towards the group of 5 from Area B[note: 346]. The Accused could clearly see that Brandon was agitated. At 03.45.43, a male person could be seen pulling Brandon to the side.
33	03.44.57 to 03.45.50	The Accused was with the group of 5 in Area C. The Accused could clearly see that Brandon was agitated. At 03.45.43, a male person could be seen pulling Brandon to the side.
34	03.45.51 to 03.46.16	Cyrus placed his arm around the Accused. Nelson was also with them. The three of them could be seen having a conversation.
35	03.46.09	Alvin joined Cyrus, Nelson and the Accused.
36	03.46.16 to 03.46.34	The Accused walked away from the group, but he re-joined them.
37	03.46.35 to 03.46.38	The Accused could be seen waving his hands in the air.
38	03.46.43 to 03.46.47	The Accused could be seen walking towards Area B where the sculpture was. Steven could be seen running after the Accused and putting his arms around the Accused and they walked off together.
39	03.46.48 to 03.47.02	The group of 5, the Accused and the plumb girl walked past the sculpture in Area B towards Area A[note: 347] together with a few others. The Accused and Steven could be seen going past the sculpture at Area B at 03.46.51.
40	03.48.25	DW2 could be seen leaving the glass door and he proceeded to walk towards the sculpture at Area B.
41	03.48.40	DW2 could be seen standing at the sculpture at Area B. The top part of DW2 was covered by the sculpture, but his bottom half could be clearly seen.
42	03.48.41 to 03.48.43	DW2 could be seen walking away from Area B and going in the direction of Area A.
	Events which took place when the group of 5 confronted PW1
43	03.48.35	PW1, PW3, PW4, PW5 and Mr X could be seen walking out of the glass door of building.
44	03.48.47	PW1 and PW3 could be seen looking in the direction of Area B and PW1 also pointed in that direction.
45	03.48.45 to 03.48.52	A group of people could be seen walking past the sculpture at Area B. Cyrus was at the front of the group and Nelson was on the left of Cyrus and Alvin was just behind them in the middle. The plumb lady was on the left of Nelson. The group was moving in the direction of PW1 and PW3.
46	03.48.54	PW3 immediately stood in front of PW1 to protect him.
47	03.48.57 to 03.48.58	Brandon could be seen walking behind Alvin and behind Brandon were the Accused, Steven and DW2. The Accused was on the left, Steven was in the middle and DW2 was on the right. When they appeared on the screen, DW2 could be seen coming out from the left side of the sculpture at Area B and the Accused and Steven appeared from the right side of the sculpture at Area B.
48	03.49.01	Cyrus, Nelson, Alvin and the plump woman approached PW1 and PW3. Brandon was right behind them. Steven could be seen running towards them.
49	03.49.04	PW3 pushed Nelson away and stood in front of PW1. PW1 and PW3 then backed towards the glass door.
50	03.49.05 to 03.49.07	It was very clear from the screen that the Accused and DW2 were following the group who were heading in the direction of PW1 and PW3.
51	03.49.07	The group of 5 and PW1 and PW3 went off the screen.
	What the Accused and DW2 were doing during the assault
52	03.49.08 to 03.49.10	The group of 5, PW1 and PW3 went off the screen. DW2 and the Accused could be seen looking in the direction of the group of 5, PW1 and PW3 when they were off the screen.
53	03.49.12	The Accused sprang into action and he moved towards the group.
54	03.49.13	The Accused could be seen eyeing the group. He was positioning himself to do something.
55	03.49.15	Brandon and Nelson were punching PW1 and Alvin and Cyrus were just looking on. There was not one behind PW1 except for the Accused. PW1 was also moving backwards away from the group of 5.
56	03.49.16	As PW1 was moving backwards, the Accused went up to PW1 from his rear. Mr X and PW4 rushed towards PW1. Dean also moved towards them. At this point of time, only Steven was trying to hit PW1. The rest of the group of 5 had stopped hitting PW1 and they were just watching PW1.
57	03.49.17	PW1 managed to break free from the group of 5. At this point, the Accused moved in to grab PW1 from behind.
58	03.49.19	The Accused right arm was holding PW1 over his shoulder and his left arm was around PW1’s body. Mr X grabbed the Accused by the neck. The Accused continued to hold PW1 by the waist. PW3 was trying to fend off Steven, Nelson and Brandon. Mr X was seen between PW1 and PW3. DW2 also went in and grabbed PW1 around his shoulders.
59	03.49.20	The Accused was still holding onto PW1 by the waist. The Accused’s right hand was holding onto PW1’s right waist and PW1 struggling to break free from the Accused. There was no one ahead of PW1.
60	03.49.21	The Accused was leaning back while grabbing onto PW1. It looked like he was trying to hold PW1 back. DW2 was also grabbing onto PW1.
61	03.49.22	PW5 grabbed Steven to prevent him from reaching PW1. DW2 was still holding onto PW1 and the Accused was still grabbing PW1.
62	03.49.23	Both DW2 and the Accused were still holding onto PW1. At this moment, Steven caught up with PW1 and started hitting him. PW3 and Mr X also ran towards PW1 to try and help him. PW3 could be seen trying to hit someone in order to help PW1.
63	03.49.22 to 03.49.24	PW3 was seen punching the Accused.
64	03.49.25	Cyrus and Alvin also caught up with PW1 and they also started hitting PW1. Steven could also be seen hitting PW1.
65	03.49.25	The Accused was still holding onto PW1. Mr X grabbed the Accused by the neck to pull him away.
66	03.49.28	PW1 fell to the ground. Alvin was seen punching Dean
67	03.49.28 to 03.49.35	After PW1 fell, Steven, Alvin, Nelson and Brandon continued to hit and kick PW1 who was on the ground.
68	03.49.37 to 03.49.43	Steven was seen pulling PW1 by his clothes and PW4 was trying to pull Steven Away from PW1.
69	03.49.29	DW2 and Alvin emerged from the group
70	03.49.30	DW2 stretched out his hands towards Alvin.
71	03.49.31	DW2 opened the palms of his stretched hands towards Alvin.
72	03.49.32 to 03.49.36	Alvin moved past DW2, pushed DW2 and went back to the group and started kicking PW1.
73	03.49.31	The Accused dragged PW3 from the group and shuffled her to the ground
74	03.49.32	PW3 tried to hit back at the Accused
75	03.49.34	The Accused pushed PW3 away with a great amount of force. This could be seen from the way PW3’s neck and upper body had jerked back after the push.
76	03.49.35	PW3 used her left hand to push against the Accused’s neck area. The Accused grabbed PW3’s hand and pushed it against her body.
77	03.49.37	Mr X rushed at the Accused and grabbed around his neck. The Accused was still holding on to PW3.
78	03.49.40	The plumb woman tried to pull Mr X away from the Accused
79	03.49.41	DW2 grabbed PW3 by the neck, pulled her away from the Accused and threw her to the floor.
80	03.49.41 to 03.49.44	PW3 wanted to go back to the group to help PW1. The plump woman tried to stop her from going back to the group.
81	03.49.44	Mr X pushed the Accused away and held him back
82	03.49.47	Mr X then rushed back to the group to help PW1. The Accused was seen walking towards the lift of the screen before making his way back towards the group.
83	03.49.42 to 03.50.00	DW2 stood at the side and watched the group.
84	03.49.50	The fight ended around this time.
85	03.50.06 to 3.50.51	DW2 walked away to the left of the screen and he sat by himself at the steps.
	PW5’s filming of the incident
86	03.49.50	PW5 took out her handphone to film the incident.
87	03.49.59	PW5 was seen stretching out her hand with her handphone to film the incident
88	03.50.00	The Accused was looking at PW5 when she was filming the incident. The Accused was standing less than a few feet away from PW5.
89	03.50.02	Alvin went towards PW5 to warn her not to film and he tried to stop her from filming.
90	03.50.03	The Accused was seen walking away from PW5 to the left of the screen.
91	03.50.04	DW2 saw the Accused walking away and he followed.
92	03.50.05 to 03.50.16	DW2 and the Accused could be seen walking towards the left of the screen.
93	03.50.16	The Accused was seen doubling back to the group.
94	03.50.24 to 03.50.40	DW2’s friend, Kiara, came out of the glass door at Singapore Land Towers. She went up to the Accused and she pulled him and led him away from the group.
95	03.50.40 to 03.50.44	After walking a few steps, the Accused turned around and walked back towards the group. Kiara held onto the Accused’s hand and tried to stop the Accused from doing that. The Accused appeared to be agitated in the video.
96	03.50.44 to 03.50.51	The Accused walked away from Kiara, walked one round around Area C and he walked back towards the group. Kiara saw the Accused walking back and tried to stop him.
97	03.50.51 to 03.50.57	The Accused walked to the back of the pillar and Kiara followed the Accused and tried to pull him back by grabbing his hand. But the Accused pulled away from Kiara and walked to the back of the pillar
98	03.51.34	The Accused walked away from the group.

116 At the close of the Prosecution’s case, I was of the view that the Prosecution had made out a prima facie case against the Accused in respect of both the proceeded charges and I thereby called the Accused to enter his defence.

Defence’s evidence and exhibits

117 The Defence had called on a total of 2 witnesses to give evidence in support of the Accused’s defence. They were:

(a) DW1 – the Accused; and

(b) DW2 – Lee Yi Yang, Dean, who was the younger brother of the Accused and one of the co-accused.

118 In addition to the 2 witnesses, the Defence had also tendered 7 exhibits in support of their case:

(a) Exhibit D1 - Screenshots from Exhibit P3;

(b) Exhibit D2 – Screenshot from Google Map showing the street view of the ground floor of Singapore Land Tower;

(c) Exhibit D3 – CCTV footages from the night of the incident taken from Singapore Land Tower lift area;

(d) Exhibit D4 – Video recording taken by PW5 on the night of the incident;

(e) Exhibit D5 – the transcript of Exhibit D4;

(f) Exhibit D6 – Photographs taken by PW7 showing how PW5 was holding to her handphone when she was taking videos on the night of the incident;

(g) Exhibit D7 – The Accused’s section 23 CPC statement recorded on 25 March 2017;

(h) Exhibit D8 – The Accused’s section 22 CPC statement recorded on 27 March 2017; and

(i) Exhibit D9 – Sketch plan of the ground floor of Singapore Land Tower showing the path taken by the Accused.

119 The Defence’s evidence could be summarised as follows:

DW1 – the Accused

120 The Accused was a 28-year-old male Chinese and he was working as an operations manager with Trinity Healthcare Group. The Accused had graduated with a degree in management and marketing^{[note: 348]}.

121 On 25 March 2017, the Accused was still studying at Kaplan Murdoch University^{[note: 349]}. The Accused had left home with DW2 at about 00.20 to 00.30 hours to go to Club Empire at Singapore Land Tower^{[note: 350]}. The 2 of them had taken a cab and had arrived at Club Empire at about 00.45 hours^{[note: 351]}. The 2 of them then met up with some friends at Club Empire. The friends were Kiara, Jessie and Andrew^{[note: 352]}. Club Empire was located on the same floor as Skyline club in Singapore Land Tower^{[note: 353]}.

122 The Accused had one drink at Club Empire. After that, he went over to Skyline club to talk to the door host of Skyline club by the name of Rachel. Rachel was the Accused’s friend and he had wanted to catch up with her on that day^{[note: 354]}. When the Accused was with Rachel, Rachel informed the Accused that there was a fight at Skyline club, but she did not give him any details about the fight^{[note: 355]}. After that, the Accused met Brandon and Brandon brought him into Skyline club^{[note: 356]}. The Accused testified that he did not have to pay any entrance fees to get into Skyline club^{[note: 357]}. When the Accused was at Skyline club, he met up at Cyrus, Steven and Nelson^{[note: 358]}. The Accused testified that he had a drink with Brandon at Skyline club and Brandon did not look unhappy when he was having his drink with Brandon^{[note: 359]}. The Accused also drank with Cyrus and Nelson^{[note: 360]}. The Accused testified that he had met up with every member of the group of 5 at Skyline club with the exception of Alvin^{[note: 361]}. The Accused testified that he did not pay for any of his drinks when he was at Skyline club^{[note: 362]}. The Accused also testified that Cyrus had brought him into Skyline club out of goodwill because they were ex-colleagues and the Accused had not been to Skyline club for a while. Moreover, Cyrus was working as a promoter at Skyline club and that was part of his job^{[note: 363]}.

123 When the Accused was at Skyline club, he had gone to the open bar area for a smoke and Cyrus came up to him and informed him that Brandon was involved in a fight with a customer^{[note: 364]}. Cyrus told the Accused that the customer had bumped into Brandon and that had led to the altercation between Brandon and the customer^{[note: 365]}. The Accused testified that Cyrus did not appear angry when he was talking to the Accused about this incident because he was smiling when he was talking to the Accused^{[note: 366]}.

124 The Accused testified that he did not pay any attention to what Cyrus had told him because he felt that it was a small thing The Accused had worked as a promoter on and off for about 5 years and he was of the view that fights in clubs were very common^{[note: 367]}. The Accused testified that he had seen a lot of fights at clubs since he started working as a promoter. In total, the Accused had seen about 200 fights^{[note: 368]} and he had stopped about 10 to 15 fights^{[note: 369]}. During re-examination, the Accused clarified that he had intervened in about 20 to 25 fights^{[note: 370]}. The Accused also testified that he had been taught by his seniors in the nightlife that the first thing to do in any fight was to separate the parties and lead them out of the club^{[note: 371]}. Police were usually not called unless the fights were so serious to have affected the entire club^{[note: 372]}. The Accused testified that from his experience, if the people involved did not break bottles or throw glasses, the police were not normally called in^{[note: 373]}. The Accused also testified that he had decided to get involved in the present case because he knew the attackers. The Accused had decided to jump in because he felt that the fight was not very serious as there was no weapons used and there was also no sound of breaking or broken glasses^{[note: 374]}.

125 Cyrus went back into Skyline club after talking to the Accused and the Accused remained at the open bar area to smoke his cigarette. When the Accused was still at the open bar area, Brandon came out of Skyline club to the open bar area followed by PW1 and Mano^{[note: 375]}. The Accused noted that Brandon appeared to be very angry at that point of time^{[note: 376]}. Brandon stood next to the Accused while Mano and PW1 stood about 2 to 3 meters away^{[note: 377]}. There was also a bouncer of Skyline club present^{[note: 378]}.

126 The Accused asked Brandon what had happened, and Brandon told him that PW1 had bumped into him. Brandon and Mano then had an argument^{[note: 379]} and they started quarrelling and pushing each other. The bouncer had to step in to separate them^{[note: 380]}.

127 After witnessing the incident, the Accused went back into Skyline club and he continued drinking and listening to music until 03.30 hours^{[note: 381]}. The Accused then went back to Club Empire to look for DW2. The Accused found DW2 and he informed DW2 that he wished to go home. However, DW2 told the Accused that he had not finished his drink. The Accused then informed DW2 that he would wait for DW2 at the ground floor of Singapore Land Tower while DW2 finished his drink^{[note: 382]}.

128 After that, the Accused took the lift and went down to the ground floor. The Accused met Nelson in the lift, and they went down to the ground floor together^{[note: 383]}. The Accused testified that he did not plan to leave Skyline club with Nelson, but he just happened to meet Nelson at the lift, and they went down together^{[note: 384]}. The Accused also testified that he did not speak to Nelson nor did he discuss anything with Nelson when they were in the lift together^{[note: 385]}.

129 When the Accused and Nelson reached the ground floor, they walked towards Area D^{[note: 386]} together^{[note: 387]}. The Accused testified that when the 2 of them were walking towards Area D, they spoke about life, school, and girlfriends^{[note: 388]}. The Accused and Nelson had decided to walk to the area marked as “X” in Area D in Exhibit P6 because they had run out of cigarettes and they were looking for Nelson’s friend to “bump off” some cigarettes^{[note: 389]}. The Accused clarified that it was common for smokers to hand out cigarettes to anyone who asked in the nightlife scene and it was not due to his closeness to Nelson that he could obtain cigarettes from Nelson’s friends^{[note: 390]}.

130 When the Accused was at the area marked “X” with Nelson, Cyrus joined them. Cyrus had asked the Accused if he wanted to join them to “talk to PW1”. After watching Exhibit P3, the Accused confirmed that Steven had also left Singapore Land Tower together with him and Nelson and all 3 of them had walked towards the area marked “X” together^{[note: 391]}. The Accused confirmed that Steven was also with them at the area marked “X” and the 3 of them had walked back to Singapore Land Tower together from the area marked “X”^{[note: 392]}. Cyrus was also with them when they were walking back to Singapore Land Tower from the area marked “X”.

131 The Accused testified that Cyrus had spoken to the Accused when they were walking back towards Singapore Land Tower from the area marked “X”^{[note: 393]}. Cyrus had asked the Accused if he had wanted to join them to talk to PW1 just before they split up. The Accused testified that when Cyrus asked him to join them, the Accused told Cyrus that he would not be joining them because he was waiting for his brother, DW2, to go home^{[note: 394]}. The other reason why the Accused did not want to join Cyrus was because he did not have “any beef” with PW1^{[note: 395]}. The Accused also confirmed that Cyrus had used words like “to scare him”^{[note: 396]} and “to intimidate PW1”^{[note: 397]} when he was talking to the Accused about PW1. The Accused testified that when Cyrus asked the Accused to join him to scare PW1, both Nelson and Steven had also heard what Cyrus had said^{[note: 398]}. The Accused testified that when Cyrus asked him to help scare PW1, the Accused had thought that only Cyrus and Brandon were involved. The Accused also did not know that they were going to beat up PW1^{[note: 399]}. The Accused testified that after he said no to Cyrus, Cyrus told him “okay” and he continued to walk to Area C while the Accused proceeded to Area B^{[note: 400]}. I also noted that the Defence’s position that they did not intend to call Cyrus as the Accused’s witness^{[note: 401]}.

132 After the parties had split ways, the Accused proceeded to walk towards the sculpture at Area B. The Accused testified that he had gone to the sculpture at Area B to wait for DW2^{[note: 402]}. When the Accused was at the sculpture at Area B, he sent a WhatsApp to DW2 to ask him when he was coming down^{[note: 403]}. The Accused then decided to go to the exit area of Singapore Land Towers to see if DW2 had come down from Club Empire^{[note: 404]}.

133 When the Accused reached Area C, he noticed Brandon in front of him and he saw that Brandon was very angry and he was shouting^{[note: 405]}. The Accused did not hear what Brandon was shouting about^{[note: 406]}. The Accused also saw the group of 5 at Area C^{[note: 407]}. The group of 5 was together with the plumb girl who was known as Kimberly and an unknown male person^{[note: 408]}. The Accused testified that Kimberly was also a promoter at Skyline club^{[note: 409]}.

134 When the Accused was at Area C, he used his handphone to text DW2 to ask him when he was coming down. DW2 had earlier informed the Accused that he was on his way down, but the Accused did not see him on the ground floor^{[note: 410]}. Cyrus then approached the Accused to catch up with the Accused. The Accused testified that Cyrus had placed his hand around the Accused and asked the Accused to return to the nightlife and to play poker with him^{[note: 411]}. The Accused also testified that Nelson was with the 2 of them when they were talking^{[note: 412]}. When the 3 of them were talking, Alvin joined them^{[note: 413]}. The Accused had worked as a promoter for 5 years and he had left the job in January 2017^{[note: 414]}. The Accused also testified that Cyrus did not speak to him about PW1 or the fight at Skyline club when they were at Area C^{[note: 415]}. The Accused also spoke to Nelson and Cyrus at Area C but he said that he said that they did not talk about the fight at Skyline club or PW1^{[note: 416]}.

135 After that, the Accused walked towards the sculpture at Area B to wait for DW2. The Accused noted that Steven had run after him and had placed his arm around him and walked together with him in the direction of the sculpture at Area B^{[note: 417]}. The Accused testified that after he had walked towards the sculpture at Area B, he did not know where Steven went^{[note: 418]}. The Accused testified that he had waited at the sculpture at Area B until DW2 came down from Singapore Land Tower and met him at the sculpture^{[note: 419]}. The Accused testified that from 03.46.58 hours onwards, he was alone at the sculpture at Area B and he was tired and thinking of going home and buying cigarettes^{[note: 420]}. DW2 came out of Singapore Land Tower and went towards Area B^{[note: 421]}. The Accused was seated at the sculpture at Area B when DW2 went over to Area B to look for the Accused^{[note: 422]}. When DW2 reached the sculpture at Area B, he took out his phone and started using his phone^{[note: 423]}. The Accused testified that he was seated at the steps at the sculpture and he was waiting for DW2 to confirm that he was ready to go home^{[note: 424]}. The Accused had intended to go to the back of Singapore Land Tower to buy cigarettes from the 7/11 shop located there and he was planning to take a taxi home from the taxi stand which was located at that area^{[note: 425]}.

136 The Accused testified that when the group of 5 confronted PW1 and PW3, the Accused and DW2 were on their way to the 7/11 shop to buy cigarettes. They were planning to take the path as drawn on Exhibit D9 to go to the 7/11 shop which was located behind Singapore Land Tower^{[note: 426]}. The route would involve them going past Area C towards the area “X” where there was an alley which cut all the way to the back of Singapore Land Tower where the 7/11 store and the taxi stand were located^{[note: 427]}. The Accused and DW2 got distracted by some commotion around Area C and they decided to walk nearer to see what was going on^{[note: 428]}. The Accused heard the group of 5 shouting profanities^{[note: 429]}. The Accused and DW2 were walking into Area C when they saw the group of 5 kick and punch PW1 and PW3^{[note: 430]}.

137 The Accused testified that when he and DW2 were at the sculpture at Area B, he did not know where the group of 5 were^{[note: 431]}. The Accused also clarified that Area A and Area B were close to each other and the smoking area was also quite close to the structures at Areas A and B^{[note: 432]}. The Accused estimated that he and DW2 were about 7.5 meters away from the sculpture at Area A at that point of time^{[note: 433]}.

138 The Accused could not recall if he was near to the group of 5 when Cyrus told the group of 5 to go and teach PW1 a lesson. The Accused also testified that he did not hear Cyrus say that they were going to teach PW1 a lesson^{[note: 434]}.

139 As to the relationship between the Accused and the group of 5, the Accused testified that as at 27 March 2017, the Accused had known Cyrus for 3 to 4 years and they used to play poker together^{[note: 435]}. Although the Accused and Cyrus were friends, they were not close friends as they were working at different clubs and they hardly saw each other^{[note: 436]}. The Accused and Cyrus had also worked together at Skyline club for about 1 month in December 2016^{[note: 437]}. However, the Accused was of the view that he and Cyrus were not good friends because good friends would text each other, go out together and have meals together. The Accused testified that he and Cyrus was not in such a relationship^{[note: 438]}.

140 The Accused testified that he had also known Brandon and Nelson for 4 months at the time of the incident^{[note: 439]}. The Accused and Brandon were both promoters and colleagues at Skyline club^{[note: 440]}. The Accused had considered Brandon as an acquaintance and ex-colleague, but he did not consider Brandon as a friend as they did not hang out together outside work^{[note: 441]}. However, the Accused regarded Brandon as a friend because he was on good terms with Brandon and they did not have any problems with each other^{[note: 442]}.

141 As for Nelson, the Accused testified that he and Nelson were on good terms on 25 March 2017^{[note: 443]}. The Accused also said that he was not very close to Nelson and Nelson was not a good friend^{[note: 444]}.

142 As for Steven, the Accused testified that he only met Steven on 25 March 2017. However, the Accused knew that Steven were friends with Cyrus, Nelson, and Brandon^{[note: 445]}.

143 The Accused had also met Alvin for the first time of 25 March 2017. The Accused said that he only found out that Alvin was friends with the rest of the group of 5 at Cantonment Police Station when he was arrested^{[note: 446]}. The Accused did not recall seeing Alvin at Skyline club, but he knew that Alvin was friends with Brandon, Cyrus, Nelson, and Steven^{[note: 447]}.

144 The Accused also testified that he did not know that Brandon, Cyrus, and Nelson were friends with Steven and Alvin because he did not know Steven and Alvin well. The Accused also said that although he knew that Cyrus wanted to talk to PW1, he did not know that the rest of the group of 5 had agreed to teach PW1 a lesson as well^{[note: 448]}.

145 As for DW2, the Accused testified that DW2 did not know the group of 5 because the Accused had never introduced DW2 to the group of 5^{[note: 449]}. The Accused also did not see DW2 talk to any of the group of 5 before the assault incident on 25 March 2017^{[note: 450]}.

146 On the issue of the Accused grabbing onto PW1, the Accused testified that he was helping to pull PW1 away from the group of attackers^{[note: 451]}. The Accused said his first instinct was to separate PW1 from the group because PW1 looked like he was being roughed out quite badly^{[note: 452]}. The Accused did not call for the police. He panicked and he just wanted to stop the fight^{[note: 453]}. The Accused testified that he had worked in nightlife before and fights were common. The Accused also testified that in a normal situation, people would not call the police and they would just stop the fight and get parties to calm down^{[note: 454]}. The Accused testified that he had stopped fights at clubs before, so it was instinctive for him to try and separate a fight when it happened right in front of him^{[note: 455]}. The Accused also said that he recognised the attackers and he did not want them to get into trouble. The Accused thought that if he had gone in to help and if the attackers saw a familiar face, maybe they would stop attacking PW1^{[note: 456]}.

147 The Accused also testified that he had tried to pull PW1 by putting his hands around PW1’s ribs^{[note: 457]}. The Accused said he had placed his arms under the arms of PW1 to pull him back^{[note: 458]}. The Accused testified that he was pulling PW1 away from the group of 5 and DW2 went in to help him pull PW1 away from the group of 5. The Accused testified that they were not trying to stop PW1 from running away^{[note: 459]}. The Accused also said that DW2 did not know that the Accused was trying to help PW1 when he went in to grab PW1, but he believed that DW2 had seen that he was helping PW1 and that was why DW2 also went to help PW1^{[note: 460]}.

148 The Accused also testified that when the group of 5 caught up with him and PW1, he did not continue to hold on to PW1 and he did let PW1 go^{[note: 461]}.

149 On the issue of the Accused attacking PW3, the Accused testified that PW3 had punched him twice in the face when he was holding onto PW1^{[note: 462]}. The Accused got angry and he had pulled her out of the group and told her “Look. I am stopping the fight. Stop hitting me”^{[note: 463]}. But PW3 refused to listen to him and she continued to attack him^{[note: 464]}. Because PW3 had continued to attack him, the Accused decided to stop her from being a danger to him as well as the people round her. That was why the Accused decided to grab PW3’s hand and pushed it close to her chest so that she could not swing her fist at anyone^{[note: 465]}.

150 When the Accused did that, Mr X went to help PW3 and he used both his hands to pull the Accused away from PW3^{[note: 466]}. DW2 saw that the Accused struggling with PW3 and Mr X and he decided to help the Accused by using his right hand to grab PW3 by the neck and pulling her away^{[note: 467]}. PW3 struggled with DW2 and he tugged her twice from the back of the neck before throwing her to the ground^{[note: 468]}.

151 On the issue of PW5 recording Exhibit D4, the Accused confirmed that he was standing very close to PW5, but he was not aware that PW5 was recording Exhibit D4 nor did he see PW5 record Exhibit D4^{[note: 469]}. The Accused testified that at that time, he was focusing on the fight outside the glass door and he did not see what PW5 was doing during the period from 03.49.50 to 03.49.53 hours^{[note: 470]}. The Accused also testified that he did not notice what Alvin was doing because he was not paying any attention to Alvin^{[note: 471]}. The Accused confirmed that he did say the words “I stop fight, yet I got hit” which were recorded in Exhibit D4 and he had said those words because he got hit by PW3 when he was trying to stop the fight^{[note: 472]}.

152 The Accused testified that after the fight was over, the Accused and DW2 went to the 7/11 shop to buy cigarettes and they went home after that^{[note: 473]}. The next morning, the police came to their house and arrested the Accused. After his arrest, the Accused was remanded for a period of 6 days from 25 March 2017 to 31 March 2017^{[note: 474]}. The Accused’s position was that he was not part of the group who had assaulted PW1 and PW3^{[note: 475]}. The Accused also said that he did not help the group of 5 cause hurt to PW1 and he was only trying to stop the fight^{[note: 476]}.

153 The Accused confirmed that the police had recorded 2 statements from him after his arrest. Exhibit D7 was his cautioned statement and Exhibit D8 was his long statement^{[note: 477]}. The Accused clarified that in Exhibit D8, it was recorded “at the ground floor, I saw Cyrus and he told me he was going to say “Hi’ to the guy who headbutted Brandon”. The Accused testified that the words recorded were not his exact words^{[note: 478]}. The Accused said that he did not tell PW7 that Cyrus said “hi”. The Accused had informed PW7 that Cyrus was going to talk to PW1 and PW7 had replied “So he is going to say “Hi’” to the guy” to which the Accused replied “Yah OK”^{[note: 479]}.

DW2 – Lee Yi Yang, Dean

154 DW2 was the biological brother of the Accused. The Accused was DW2’s older brother^{[note: 480]}. DW2 had testified that he and the Accused had gone to Club Empire located at Singapore Land Towers on 25 March 2017. DW2 had wanted to go to Club Empire to look for a friend by the name of Kiara who was working at Club Empire at that point of time^{[note: 481]}. DW2 and the Accused had arrived at Club Empire around 12.00 to 12.10 am and they met up with Kiara for drinks at Club Empire^{[note: 482]}. About 20 to 30 minutes later, the Accused left Club Empire and he went over to Skyline club^{[note: 483]}. The Accused did send a text message to DW2 to inform him that he was at Skyline club^{[note: 484]}. DW2 did not go to Skyline club and he remained at Club Empire. DW2 also testified that Club Empire and Skyline club were located on the same floor at Singapore Land Tower^{[note: 485]}.

155 At around 3.30 am, DW2 received a text from the Accused asking him if he was ready to go home and he asked the Accused to wait for him as he was still drinking^{[note: 486]}. DW2 also testified that the Accused had told him to meet the Accused on the ground floor, but the Accused did not specify where to meet at the ground floor^{[note: 487]}. DW2 also testified that the entire area outside the Singapore Land Tower was quite small^{[note: 488]}.

156 When DW2 left Club Empire and went to the ground floor of Singapore Land Tower, he saw the Accused seated at the sculpture at Area B and he walked over to Area B to meet up with the Accused^{[note: 489]}. DW2 testified that the Accused was alone and seated at the sculpture^{[note: 490]}. When DW2 saw the Accused, he asked the Accused if he was ready to go home and the Accused told him yes^{[note: 491]}. The two of them had wanted to take a taxi home from the taxi stand in front of Singapore Land Tower but there were a lot of people at the taxi stand^{[note: 492]}. So, the 2 of them decided to take a taxi from the taxi stand behind Singapore Land Tower^{[note: 493]}.

157 DW2 could not remember if the group of 5 was near the 2 of them when they were at the sculpture at Area B^{[note: 494]}. However, DW2 agreed with the Prosecution that the 2 of them and the group of 5 should be in the same area around the same time. DW2 also denied that he and the Accused were part of the same group that was walking towards PW1 and PW3^{[note: 495]}. DW2 testified that it was coincidence that they were all walking in the same direction^{[note: 496]}.

158 DW2 testified that he and the Accused were making their way towards the taxi stand behind Singapore Land Tower when they chanced upon a fight going on involving the group of 5 and PW1 and PW3^{[note: 497]}. When DW2 saw the fight, he kept his distance because he did not want to get involved^{[note: 498]}. DW2 also testified that he did not know that there was going to be fight before the group of 5 started attacking PW1 and PW3^{[note: 499]}.

159 DW2 then saw the Accused step in to help pull PW1 from the group of 5^{[note: 500]}. DW2 testified that he saw PW1 fighting with the group of 5 and the Accused going in to help PW1^{[note: 501]}. DW2 saw the Accused pulling PW1 away from the attackers. DW2 testified that he was of the view that the Accused was trying to stop the fight because the Accused was pulling PW1 away^{[note: 502]}. DW2 felt that if the Accused had wanted to prevent PW1 from escaping, he could have just hit PW1 or pushed PW1 towards the group of 5^{[note: 503]}. DW2 saw the Accused struggling with PW1 and he decided to move in to help the 2 of them^{[note: 504]}. DW2 felt that the Accused was struggling because PW1 was much bigger than the Accused and PW1 might not know that the Accused was trying to help him^{[note: 505]}.

160 DW2 testified that he tried to help the Accused to pull PW1 away to create some distance between PW1 and the attackers. When DW2 was doing that, he felt someone punch him twice in the face^{[note: 506]}. DW2 turned around and saw that it was Alvin who had hit him^{[note: 507]}. DW2 testified that Alvin had punched his head and had landed blows on his face^{[note: 508]}. DW2 then raised his hands towards Alvin with his palms upwards to tell Alvin to calm down and not to fight^{[note: 509]}. DW2 testified that he had raised his hands with his palms upwards to indicate to Alvin that he had no intention to fight^{[note: 510]}. However, Alvin ignored DW2 and he went to join the group to continue assaulting PW1^{[note: 511]}. DW2 testified that he could not be part of the group which had attacked PW1 and PW3 because he was also beaten up during the attack^{[note: 512]}.

161 After his encounter with Alvin, DW2 saw that PW3 was attacking the Accused and he went to help the Accused by pulling PW3 away from the Accused^{[note: 513]}. DW2 testified that he did not know why PW3 was attacking the Accused, but he noticed that she was hysterical^{[note: 514]}. DW2 saw that the Accused was frustrated, and he reacted by holding PW3’s arms to prevent her from hitting him and to defend himself^{[note: 515]}. In his EIC, DW2 had testified that when the Accused was holding onto PW3’s hand, he had heard the Accused say “I stop fight, but I still get hit”^{[note: 516]}.

162 DW2 testified that he decided to help the Accused by using his right arm to grab PW3 by the neck and pulling her away from the Accused. DW2 said that he did that to separate the Accused and PW3^{[note: 517]}. DW2 testified that PW3 was struggling at that point of time and DW2 had to tug her hard by the neck from behind the neck 2 times before he was able to throw her to the ground^{[note: 518]}. DW2 confirmed that he had to use a lot of force on PW3 because PW3 was holding to the Accused very tightly^{[note: 519]}. DW2 admitted that he might have used too much force on PW3 which resulted in her flipping and falling onto the ground, but he said that it was caused by PW3 resisting and holding onto the Accused tightly^{[note: 520]}. DW2 said that he had pulled PW3 away from the Accused because she was hitting the Accused and trying to hurt him^{[note: 521]}.

163 After this, DW2 decided that he would not get involved in the fight anymore and he kept his distance from everyone else^{[note: 522]}. DW2 then decided to move away from the group, and he went to sit down at the steps leading to Singapore Land Tower^{[note: 523]}.

164 DW2 also confirmed that the Accused had not inform him that he was going to help PW1 before going in and grabbing PW1. However, DW2 was of the view that the Accused was not the type of person who would get into a fight as he was not a violent person. DW2 testified that the Accused used to work as a club ambassador, and it was his responsibility to break up fights and not to join in fights^{[note: 524]}.

165 After the incident, DW2 and the Accused took a taxi home. The following day, police officers came to their home and took both away for questioning^{[note: 525]}. DW2 testified that he was detained by the police for 6 to 7 days for questioning and he informed the police that he was just trying to help^{[note: 526]}. DW2 was given a conditional warning by the police^{[note: 527]}.

166 As regards to DW2’s relationship with the group of 5, DW2 testified that he did not know who Alvin and Steven were before the fight. However, DW2 knew that Cyrus, Brandon, and Nelson were the Accused’s colleagues even before the fight. DW2 testified that he was not sure of the level of friendship between the Accused and Cyrus, Brandon, and Nelson, but he knew that they were acquainted with the Accused^{[note: 528]}. DW2 also testified that he did not know that Steven and Alvin were friends of the Accused before the fight started^{[note: 529]}.

167 The Defence had also tendered another CCTV footage from Singapore Land Tower which had captured the incident on 25 March 2017. This CCTV was taken from the gantry entrance to Singapore Land Towers and it had been admitted and marked as Exhibit D3. I had viewed Exhibit D3 and I noted the following events which were captured on Exhibit D3:

S/No	Time as shown in D3	Event
1	03.33.23	Alvin walked out of the glass door.
2	03.33.55	PW3, PW1, PW4 and lady in black appeared on the screen.
3	03.34.37	PW3, PW1, PW4 and lady in black went out of the glass door of the building.
4	03.34.38 to 03.35.28	PW3, PW1, PW4 and lady in black could be seen standing just outside the glass door.
5	03.34.59	Accused and Nelson walked out of the glass door and headed towards Area X.
6	03.35.28	PW3 came back into the building through the glass door.
7	03.38.10 to 03.38.12	PW1 walked into the building through the glass door and subsequently went out of the glass door.
8	03.38.28 to 03.38.30	PW1 walked into the glass door and subsequently went out of the glass door.
9	03.40.55	PW3 went out of the glass door.
10	03.41.32	PW1 and PW3 came back into the building through the glass door.
11	03.44.46	Brandon left the building through the glass door.
12	03.48.23	PW4, Mr X and DW2 appeared on the screen. DW2 was seen walking out of the glass door. Mr X was holding the glass door for PW1, PW3 and PW5.
13	03.48.32	PW1, PW3 and PW5 left the building through the glass door.
14	03.48.47	PW1 and PW3 could be seen on the top left-hand corner of the screen. They were outside the glass door and PW1 was pointing at something.
15	03.48.57	The group of 5 could be seen approaching PW1 and PW3.
16	03.49.02	Someone had punched PW1 and he was reeling back. PW3 tried to defend PW1 by blocking the attackers from him.
17	03.49.03 to 03.49.10	The group of 5 could be seen going after PW1. The plumb lady could be seen following the group of 5.
18	03.49.07	DW2 could be seen watching the group attack PW1. DW2’s bottom could be clearly seen on the screen on top of the number “2017”.
19	03.49.15	The Accused could be seen running into the group.
20	03.49.16	PW1 was in the middle of the group and he was being attacked by the group.
21	03.49.17	PW1 was moving backwards and trying to run away from the group of 5. It was clear that the group of 5 were in front of PW1 when he was moving backwards.
22	03.49.17 to 03.49.19	The Accused could be seen grabbing PW1 from his behind and dragging him backwards.
23	03.49.18	The Accused’s left hand was around PW1’s waist and his right hand was over PW1’s shoulder.
24	03.49.19 to 03.49.24	As the Accused was dragging PW1 backwards, the rest of the group of 5 chased after PW1.
25	03.49.24 to 03.49.40	PW1 was being attacked outside the glass door.
26	03.49.41	PW1 fell to the ground and he attempted to crawl away from the group.
27	03.49.41 to 03.49.50	PW1 tried to get up to escape from the group. But he was dragging by his shirt.
28	03.49.50	PW1 managed to break away and run away from the group.

Prosecution’s case^{[note: 530]}

Introduction

168 The Prosecution had pointed out that the Accused was the last of seven accused persons to be dealt with in relation to DAC 910845-2017. The other six-co-accused persons listed in the said charge had been dealt with in 2017 and 2018 for their involvement in the riot. The group of 5 had pleaded guilty and had been sentenced accordingly and DW2 was issued with a 12-month conditional warning.

169 The Prosecution submitted that the riot had arose from a trivial incident that Brandon had with PW1 in Skyline club, causing Brandon to be unhappy as he was ejected from the club. The Accused knew that his friends, i.e. the group of 5 were unhappy and wanted to get even with PW1. To this end, Exhibit P3, the CCTV footage from area C captured the group of 5, the Accused and DW2 and their friends approach the 2 victims (i.e. PW1 and PW3). The group of 5 first attacked PW1by pushing, punching, and kicking him while the Accused and DW2 watched on. The Accused was on standby mode while he watched the assault. As soon as the Accused saw PW1 move away from the group of 5, he swiftly moved in to grab PW1 from behind to restrain him and prevent him from escaping. Seeing the Accused struggle to hold back PW1, DW2 stepped in to help his brother restrain PW1 until the group of 5 caught up and continued assaulting PW1. Nevertheless, the Accused viciously continued to restrain PW1 at his waist so that he could not escape. PW3 was also assaulted while trying to fight off the whole group.

170 While the Accused claimed that he had been wronged as he was trying to save PW1 from the group of 5, the Prosecution was of the view that the Accused’s claim was absurd as it ran contrary to evidence from the Prosecution’s witnesses and objective evidence, i.e. Exhibit P3. Such a defence was even more preposterous when the Accused had admitted in both his statements to the police and in oral testimony that he continued to grab PW1 despite the latter struggling with him. For these reasons, the Prosecution was of the view that the Accused’s defence ought to be rejected.

171 The Prosecution submitted that the evidence against the Accused for his involvement in the riot was overwhelming. The Prosecution was of the view that it had proven its case beyond a reasonable doubt and urged me to convict the Accused of DAC-910845-2017.

The undisputed facts

172 The Prosecution pointed out that the following facts were undisputed:

(a) The Accused and DW2 were brothers and were close^{[note: 531]}.

(b) On the day of the incident, the Accused and DW2 were initially at Club Empire at Singapore Land Tower with other friends who were not involved in the riot.

(c) The Accused had not made any arrangement to meet up with anyone on the night of the incident.

(d) The Accused subsequently met Brandon by chance.

(e) Brandon brought the Accused into Skyline club under his guestlist.

(f) On the day of the incident, Cyrus and Brandon were working as promoters at Skyline club while PW6 was working as a promoter and lighting technician at the said club^{[note: 532]}.

(g) Cyrus^{[note: 533]}, PW6^{[note: 534]} and the Accused were friends and were on good terms.

(h) Brandon was acquainted with the Accused and they were on good terms^{[note: 535]}.

(i) The Accused met Steven^{[note: 536]} and Alvin^{[note: 537]} for the first time on the date of the incident.

(j) Before the riot, while in Skyline club, the Accused knew that Steven was friends with Brandon, Cyrus and PW6 as he saw them together^{[note: 538]}.

(k) Sometime before the riot, the Accused knew that Alvin was friends with Brandon, Cyrus, PW6 and Steven^{[note: 539]}.

(l) The Accused had worked in nightlife and clubs prior to the date of the incident. I also noted that the Accused had previously worked as a promoter in Skyline club.

(m) In Skyline club, Brandon had a problem with PW1.

(n) The Accused did not see what happened between Brandon and PW1 in Skyline club.

(o) While in Skyline club, as early as 1 plus am on the date of the incident, the Accused had already known that Brandon and PW1 had a problem with each other in the club^{[note: 540]} as he heard about it from other people.

(p) Later that morning, at about 3.44 am, while the Accused was outside Singapore Land Tower, he saw Brandon exit the said building looking very angry while shouting^{[note: 541]}.

(q) A short while before 3.44am, the Accused knew that members of the group of 5 would be approaching PW1 as Cyrus had told the Accused about this in the presence of Steven, PW6 and some of their unknown acquaintances and he had asked the Accused whether he wished to join them^{[note: 542]}.

(r) DW2 exited Singapore Land Towers at 03.48.23 hours^{[note: 543]} and walked towards the sculptures because he saw the Accused there^{[note: 544]}.

(s) The group of 5 had first approached the 2 victims, PW1 and PW3 at area C at about 3.49am and had assaulted PW1 by pushing, punching, and kicking him.

(t) The Accused and DW2 saw the group of 5 kick and punch the 2 victims as shown in Exhibit 3 from timestamp 03.49.05 - 03.49.11^{[note: 545]}.

(u) PW3 was also assaulted by the group of 5^{[note: 546]}.

(v) The 2 victims had sustained the injuries as reflected in their respective medical reports marked as Exhibits P4, P2 and P5 as a result of being assaulted at the material time of the offence^{[note: 547]}.

(w) PW3 had punched the Accused in the face a few times at the material time of the offence^{[note: 548]}.

The disputed areas

173 The Prosecution was of the view that the areas of dispute pertained to whether the Accused was part of the group of 5 and shared the common object to cause hurt to PW1 and PW3:

(a) Whether the Accused was part of the group that had approached the 2 victims;

(b) Whether the Accused’s physical contact with PW1 was to facilitate in the group attack or to help save PW1 from the group of 5; and

(c) Whether the Accused was telling the truth when he claimed to have stopped the fight as captured in Exhibit D4 (the video recording taken by PW5) or whether he had staged this as he knew that PW5 was video recording the assailants in order to send it to the police.

The Prosecution’s position

The Accused knew that his friends were going to confront PW1 over an earlier incident

174 The Accused had testified that, as early as 1 plus am, he had known that Brandon was having a problem with PW1 in the Skyline club^{[note: 549]}. The Accused had also testified that at 3 plus am, after exiting Singapore Land Tower with PW6, the two of them had walked to Area X^{[note: 550]} to get cigarettes from PW6’s friends. The Accused’s evidence was that Cyrus, Alvin, Steven, Kimberly^{[note: 551]} and some of their unknown friend(s) subsequently joined them at Area X and they all walked back to Singapore Land Tower together. The Accused had testified that, during this walk back to Singapore Land Tower (which was shortly before 3.44 am^{[note: 552]}), Cyrus told the Accused that they were going to confront PW1 and asked him whether he wanted to join them. On the purpose of confronting PW1, the Accused had testified that Cyrus had used words to the effect of scaring PW1^{[note: 553]} and the Accused had surmised that it was “to intimidate [PW1] a bit”^{[note: 554]}.

175 PW6 had also testified that, while at the smoking corner outside Singapore Land Towers (“the smoking corner”)^{[note: 555]} around 3.48am^{[note: 556]}, Cyrus seemed “really very agitated”^{[note: 557]} while he told the rest of the group of 5 that PW1 had threatened to break his neck. PW6 also testified that PW1 had exited Singapore Land Tower at that juncture and Cyrus had pointed towards PW1 to identify him and said, “let’s go teach him a lesson” and the group then moved off to approach PW1. PW6 also testified that while there were no specific instructions or discussion on how they would go about to teach PW1 a lesson, he understood that their purpose of confronting PW1 on would be to scare or beat him^{[note: 558]}.

176 Although PW6 had initially testified that the 2 brothers were with the group of 5 at the smoking corner when Cyrus gave the said instructions, PW6 subsequently testified that he was unsure whether the 2 brothers were present at that time. Even though PW6 was unable to state exactly where the 2 brothers were at that time^{[note: 559]}, he had testified that “[the 2 brothers] may have heard”^{[note: 560]} what Cyrus had said as his volume was quite loud^{[note: 561]}. PW6 had explained that, even if the 2 brothers were not with the group of 5 who were near sculpture A and the smoking corner at that time, they were nearby^{[note: 562]}. In cross-examination, although PW6 agreed that the various areas and sculptures marked on Exhibit P6 were “different places”^{[note: 563]}, he explained that the smoking corner was “quite close”^{[note: 564]} to sculpture A and sculpture A to Area D (marked on Exhibit P6) was not far apart and were only about 10 steps apart. The Prosecution also submitted, as shown in Exhibit P6, that the area outside Singapore Land Tower was small to begin with - sculpture A, sculpture B and the smoking corner were only a few metres apart. PW7 had also testified that based on his scene visit, sculptures A and B were about 8-10 steps apart from each other (7.5 metres)^{[note: 565]}.

The group of 5, the Accused and their friends had assembled shortly before the riot and had approached the 2 victims as one big group

177 Exhibit P3 showed that, in less than three minutes before the riot, the group of 5, the Accused and their friends (Kimberly and other unknown friends) had walked away from Area C towards the structures to assemble. The Accused had agreed in cross-examination that, between timestamp 03.46.40 – 03.46.50, the group of 5 and the Accused left Area C to walk towards the structures and during this time, Steven had his arm around the Accused^{[note: 566]}. In the next 17 seconds from timestamp 03.46.50 – 03.47.07, Kimberly and the other unknown friends of the group of 5 cleared out from Area C and similarly walked towards the structures^{[note: 567]}. Area C where the riot took place, largely remained empty until the 2 victims, PW4, PW5 and Mr X walked into that area after exiting Singapore Land Towers at timestamp 03.48.35.

178 However, as conceded by the Accused in cross-examination, save for the base of structure B, the background in P3 was unclear^{[note: 568]}. Exhibit P3 did not show exactly where all of them had assembled.

179 Based on the silhouette that the Accused had identified to be himself behind sculpture B in Exhibit P3 at timestamp 03.48.00^{[note: 569]}, the Accused was not alone as his silhouette was seen to be with another person. Further, by timestamp 03.48.31, as noted by the court, there were no more silhouettes at sculpture B which meant that, even if it was accepted that the silhouette that the Accused identified was his, he was no longer at sculpture B by timestamp 03.48.31^{[note: 570]}.

180 Exhibit P3 showed DW2 exiting Singapore Land Tower at timestamp 03.48.23, and walking towards the structures and stopping somewhere between structures A and B at timestamp 03.48.39 (which was why structure B was blocking part of DW2’s conspicuous light denim jeans) because he saw the Accused there^{[note: 571]}. The Prosecution was of the view that even if the court accepted the Defence’s version that the group of 5 were not with the 2 brothers at that time, and were purportedly at structure A (which appeared to be their position^{[note: 572]}), all of them would all have been very near to each other, i.e. a few steps away as the distance between structures A and B was only 7.5 metres^{[note: 573]}.

181 Exhibit P3 showed the 2 victims, PW4, PW5 and Mr X exiting Singapore Land Towers and walking into Area C shortly after DW2 had exited Singapore Land Towers. Seconds later, Exhibit P3 showed that at timestamp 03.48.46, a large group consisting of the group of 5, the Accused, DW2, Kimberly and their unknown friends approached the 2 victims from the same direction, i.e. they came from the area where the sculptures and smoking corner were and had walked past sculpture B to move into Area C^{[note: 574]}.

182 The Accused also agreed in cross-examination that Exhibit P3 showed at timestamp 03.48.57 that when walking towards Area C, the Accused had emerged from the left side of sculpture B while DW2 had emerged from the right side of sculpture B and Steven was walking in between them^{[note: 575]}.

183 While the whole group was still some distance away from Area C, at timestamp 03.48.48, PW1 testified that he used his right hand to point at them to tell PW3 that the group was approaching them as he could hear them shouting vulgarities^{[note: 576]}. The Prosecution submitted that this showed that the whole group was hostile and was out to find trouble with PW1.

184 Exhibit P3 had also captured at timestamp 03.48.55 that Cyrus was the first of the group of 7 to approach PW1 and he was talking to PW1 while pointing at himself. By timestamp 03.49.01, PW6 was next to Cyrus and the physical attack started with Cyrus using his hand to push PW1. At that time, Alvin and Kimberly were following behind Cyrus and Nelson. Brandon was following behind Alvin and was some distance away while Steven was behind Brandon and had started to run towards the 2 victims. The Accused and DW2 followed behind Brandon and Steven into Area C where the assault was taking place.

The Accused had participated in the riot

185 The Prosecution submitted that the main target of the group of 7 was PW1. However, PW3 was also assaulted during the riot as she tried to keep PW1 close to her as she wanted to protect him.

186 At timestamp 03.49.03, PW6 used his hand to push PW1 and PW3 tried to protect PW1 by stepping in front of him and pushing PW6 back with her hand. Exhibit P3 showed that by timestamp 03.49.05, PW1 and PW3 had started to retreat and they moved backwards as the group of 5 continued to walk towards them with the Accused and DW2 following behind them. When PW1 and PW3 and the group of 5 went off-screen between 03.49.05 – 03.49.15, the group of 5 punched and kicked PW1^{[note: 577]}. During that time, between 03.49.05 – 03.49.11, Exhibit P3 showed the Accused and DW2 continuing to walk further into Area C towards the group of 5 who were assaulting PW1 and PW3. The Accused and DW2 watched the assault as they moved into Area C.

187 Exhibit P3 then showed at timestamp 03.49.11 – 03.49.15, the Accused swiftly moving towards the group of 5 and PW1 who had come back on-screen. Between 03.49.15 – 03.49.17, the Accused walked towards PW1 with his arms stretched out and he grabbed PW1 from behind with his arms placed over PW1’s shoulders to restrain PW1’s arms so that PW1 could not defend himself or run away^{[note: 578]}. At this time, PW4, PW5 and Mr X moved towards PW1 to help him as they realised that he was being assaulted. While the Accused was grabbing onto PW1, timestamp 03.49.18 showed Mr X briefly grabbing the Accused from behind.

188 PW1, PW3 and PW4 all testified that the Accused had grabbed PW1 for some time to restrain him and prevent him from escaping. PW6 confirmed in his oral testimony that the Accused’s actions allowed him and the rest of the members of the group of 5 to catch up with PW1 and continue assaulting PW1.

189 PW1 also testified that he struggled to break free from the Accused so that he could run away. However, PW1 was unable to do so because the Accused had grabbed him with “a great deal of force” and restrained him at his waist^{[note: 579]}. PW1 had testified that, at one point in time, while being restrained at the waist from behind, he had turned around and saw the Accused restraining him^{[note: 580]}. On seeing the Accused struggle to restrain PW1, DW2 stepped in to grab PW1 to help the Accused restrain him^{[note: 581]}. Mr X then tried to get the 2 of them to release PW1 but to no avail^{[note: 582]} as the group of 5 had caught up and had surrounded them and they continued to assault PW1^{[note: 583]}.

190 During the cross-examination of PW1, when the Defence suggested to PW1 that the Accused was trying to help him by pulling him away from the group of 5, PW1 firmly rejecting the assertion, PW1 testified that, he was trying to run away from the group of 5 but the Accused had prevented him from doing so by restraining him at his waist^{[note: 584]}. To this end, PW1 had pointed out that between timestamp 03.49.21 – 03.49.22 when he was trying to run towards the opposite direction from where the group of 5 were (i.e. where the coast was clear), Exhibit P3 clearly showed that the Accused had used a lot of force to tug him backwards from behind at his waist^{[note: 585]}.

191 Both PW1 and PW3 had testified that the Accused only let go of PW1 after the group of 5 had caught up with PW1 and continued to assault him. PW3 further testified that the Accused only released PW1 after she had punched the Accused a few times in the face to make him let go of PW1^{[note: 586]}.

192 PW3 also testified that after the Accused had let go of PW1, the Accused pulled her away from PW1. PW3 explained that she had tried to return to PW1 as she wanted to protect him, but the Accused had prevented her from doing so and she hit him again^{[note: 587]}. As shown on Exhibit P3 at timestamp 03.49.34, the Accused then pushed PW3 with great force. During this time, Mr X had turned around and moved towards PW3 to help her. Notwithstanding that, the Accused refused to let go of PW3. Exhibit P3 at timestamp 03.49.36 – 03.49.40 showed the Accused and PW3 struggling with each other while Mr X was trying to pull the Accused away from PW3. PW3 also testified that, during that time, the Accused had grabbed her hand and pressed it against her throat, causing her to feel breathless^{[note: 588]}. Exhibit P3 at timestamp 03.49.40 also showed Kimberly and DW2 (who had both been watching the said struggle), step in to help the Accused. Kimberly tried to pull Mr X away from the Accused while DW2 grabbed PW3 around her neck and pushed her onto the ground^{[note: 589]}.

The Accused shared the common object with the group of 5 to assault PW1

The law on rioting

193 S 146 of the Penal Code had provided:

Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting

194 The elements to prove the offence of rioting were:

(a) Force or violence was used (“The First Element”);

(b) The force or violence was used by an unlawful assembly or by any member thereof (“The Second Element”); and

(c) It was used in the prosecution of the common object of such assembly (“The Third Element”) (collectively, “The 3 Elements”).

195 For The First Element, the word “force” could be found in ss 349 and 350 of the Penal Code which restricted the application of force to a human person, whereas the word “violence” was comprehensive and was used to include violence to property and other inanimate objects4. The Prosecution submitted that it was not necessary that the force or violence be directed against any particular person or object. The use of any force or violence, even though it be of the slightest possible character, by anyone of an assembly, once established as unlawful, constituted rioting. For instance, if only one blow was given by a member of an unlawful assembly which had caused simple or grievous hurt, every member of the assembly would himself be liable under s 146 of the Penal Code.

196 For The Second Element, the definition of what constituted an unlawful assembly could be found in s 141 of the Penal Code. It was trite that an assembly of five or more persons was an unlawful assembly provided that the common object of the assembly was one of the five conditions listed in s 141 of the Penal Code. The identity of all the persons forming the unlawful assembly was not material, so long as the accused person was part of that assembly and a conviction could still be sustained. It was also not necessary to show that the accused person was the one who used force or violence. Once the common object was established, it was sufficient that one or more members had used force or violence.

197 The Third Element required that a common object of the persons forming the unlawful assembly be proved. At this juncture, it would be apposite to highlight that a “common object” is not the same as “common intention” under s 34 of the Penal Code. In Chandran and Others v Public Prosecutor [1992] SGCA 41 (“Chandran”), the Court of Appeal (“CA”) observed the following:

“11 … In our judgment, there was ample evidence to support their findings that the appellants and five others had the common object of causing grievous hurt to Suppiah and his men by way of revenge for the attack on the third appellant...

… Section 149 does not require proof of a pre- arranged plan and a common intention which a prosecution involving s 34 of the Code would require. The ‘common object’ under s 149 of the Code must not be confused with the ‘common intention’ under s 34 of the Code. Though they both deal with what may be called ‘constructive liability’ for crime, it is important to see the distinction and the way both sections operate.

13 In Barendra Kumar Ghosh v Emperor, Lord Sumner, at p 7, said:

There is a difference between object and intention; for though their object is common, the intentions of several members may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action which is the leading feature of s 34, is replaced in s 149, by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence [Emphasis added]

198 Hence, unlike “common intention”, “common object” did not require a meeting of minds before the attack. Proof of a pre-arranged plan was therefore required. A common object could be formed on the spot (Lee Tiaw Chwee v Public Prosecutor [1998] SGHC 26212 at [18] and Lim Thian Hor v PP [1996] 2 SLR 258 (“Lim Thian Hor”) at p 264, [2]). However, a member of an unlawful assembly must be aware of the common object and concur in it (Md Anverdeen Basheer Ahmed & Ors v Public Prosecutor [2004] SGHC 233).

199 The common object of the unlawful assembly could be ascertained from the nature of the assembly, arms used by the members and the behaviour of the assembly at or before the scene of occurrence ¹⁵. A common object did not require a prior consent or prior meeting of minds—it was enough that each person had the same object and that their number was five or more and they acted as an assembly to achieve that object: see Lim Thian Hor at page 264.

200 Furthermore, mere presence in an unlawful assembly might or might not constitute membership of that assembly. It depended on whether in all the circumstances of the case, the court could draw the inference from a person’s mere presence that he shared the common object of that assembly. The following passage from Chief Justice Yong Pung How’s (“CJ Yung”) (as he then was) judgment in Lim Thian Hor at page 264, [3] cogently captured this proposition:

“It is of course well-settled law that a mere presence in an assembly of persons did not make the accused a member of an unlawful assembly, unless there was direct or circumstantial evidence to show that the accused shared the common object of the assembly. In my opinion, however, a person present at the assembly can be said to be a member of the assembly even if no overt act is proved against him. Provided the circumstances are such as to justify an inference that he associated himself, with the offending members, it may be inferred that he is a member of such an assembly. In every case, this question is one of fact as to whether he happens to be innocently present at the place of occurrence or was actually a member of the unlawful assembly”.

201 The above proposition was reaffirmed in CJ Yong’s subsequent judgment in Osman bin Ramli v PP [2002] 2 SLR(R) 959 (“Osman”) at [26]. CJ Yong added Osman that there was no requirement that a member of an unlawful assembly must be an ‘active participant’ or that some ‘overt act’ must be proven against him.

Submissions

202 The Prosecution submitted that the 3 elements required to make out the rioting charge against the Accused had been proven.

203 In relation to The First Element and The Second Element, the Accused, DW 2 and the group of 5 were members of an unlawful assembly and had used force and violence on PW1and PW3:

(a) The group of 5 had used violence on PW1 by punching and kicking him while the Accused used force to restrain PW1 to prevent him from running away, thus enabling the group of 5 to catch up and continue assaulting him.

(b) The Accused also used force on PW3 when he pulled her away from PW1, and prevented her from returning to PW1’s side to protect him by pushing her, grabbing her hand and pressing it against her throat and causing her to feel breathless.

(c) DW2 had also used force and violence on PW1 and PW3 when he stepped in to help the Accused on the above.

204 In relation to The Third Element, the force and violence used by the group of 5, the Accused and DW2 on PW1 and PW3 were pursuant to their common object to cause hurt to the 2 victims. The Accused’s actions showed that he had shared a common object with the group of 5 as:

(a) The Accused had restrained PW1, allowing the group of 5 to attack him; and

(b) The Accused had prevented PW1’s then girlfriend, PW3, from helping him.

205 For completeness, the Prosecution pointed out that DW2 shared the common object with the group of 5 and the Accused when he joined in to help the Accused deal with PW1 and PW3 after he saw the Accused struggling with the 2 of them on separate occasions.

Whether the rioting charge was made out even if members of the unlawful assembly had different reasons for being unhappy with PW1.

206 The Prosecution noted that there was inconsistent evidence from the following witnesses on the reasons that lead to the group attack on PW1:

(a) PW6 had testified that Cyrus had told the rest of the members of the group of 5 that PW1 had threatened to break his neck and Cyrus and PW1 had an argument.

(b) PW1 disagreed that he had uttered such a threat to Cyrus and he had testified that he had a problem with Brandon in Skyline club.

207 The Prosecution submitted that the charge was made out even if members of the unlawful assembly had different reasons for being unhappy with PW1. It was immaterial that the members of the unlawful assembly had different reasons to be unhappy with PW1. What was critical was whether (a) force and violence had been used by the unlawful assembly- The First Element and The Second Element; and (b) the members of the unlawful assembly shared a common object to cause hurt to PW1 and PW3 - The Third Element.

208 Although the members of the unlawful assembly had different reasons for being unhappy with PW1, these various reasons had led to all of them to be unhappy with PW1. It was their unhappiness with PW1 which had sparked off the attack on PW1 and PW3.

Whether the charge of rioting was made out if the Accused had a “different intention” from the other members of the unlawful assembly.

209 The Prosecution submitted that the Accused’s intention need not be the same as that of the other members of the unlawful assembly so long as the common object was the same. If that was the case, the charge of rioting would still stand.

210 As set out at [8], the CA in Chandran made it clear that “common object” and “common intention” were different and members of the unlawful assembly could share a common object but have different intentions. Therefore, even if the Accused had a different intention from the other members of the unlawful assembly, this was immaterial. What was material was that the Accused clearly shared the common object of the unlawful assembly.

211 In any event, the Prosecution highlighted that the Accused had the same intention as the other members of the unlawful assembly, and that was to cause hurt to PW1 and PW3. The Accused had caused hurt to PW3 when he used violence on her, and while the Accused did not cause hurt to PW1, he had used force to restrain PW1 so that the other members of the unlawful assembly could cause hurt to him. Exhibit P3 which corroborated the Prosecution’s witnesses, showed that the Accused had grabbed PW1 for a nefarious purpose, i.e. he wanted PW1 to be beaten up. This intention was consistent with the group of 5’s intention to cause hurt to PW1. The evidence was clear that the Accused partook in the riot. The objective evidence did not support the Accused’s claim that he had stepped in to help PW1.

The Defence’s position

212 The Prosecution noted that the crux of the Accused’s defence was that the Accused was not a member of the group of 7 and did not share the common object of that group to cause hurt to PW1. The Accused had contended that:

(a) The Accused did not know that the group of 5 were going to beat up PW1.

(b) The Accused was not with the group of 5 when Cyrus said “let’s go teach [PW1] a lesson” as he was at sculpture B.

(c) The Accused and DW2 were not part of the group of 7 that had approached PW1 and PW3. It was purely a coincidence that the group of 5 attacked PW1 in front of the Accused and DW2 while they were on the way to buy cigarettes and to take a taxi home thereafter^{[note: 590]}.

(d) After seeing the group of 5 attack PW1, the Accused had intervened to try and pull PW1 away from the group of 5 “to stop the fight”.

(e) The Accused has been misunderstood to have participated in the riot as the manner in which he tried to stop the fight may have been “poor execution”^{[note: 591]} on his part because he had panicked at that time^{[note: 592]}.

(f) The Accused was captured angrily saying that he had stopped the fight but was hit in Exhibit D4^{[note: 593]} and this was a true and contemporaneous account of what had transpired during the incident.

213 The Prosecution also noted that the Accused had called DW2 as his witness to corroborate him story of the events.

The Prosecution’s submissions

214 The Prosecution had submitted that the evidence showed that the group of 7 had approached PW1 and attacked him. The Accused knew ahead of the riot that his friends, i.e. the group of 5 was going to get even with PW1 over an earlier incident. He therefore facilitated in the group attack by restraining PW1 to prevent him from running away so that the group of 5 could assault him. As for DW2, although he joined the group shortly before the riot, the evidence showed that he had knowingly assisted in the group attack by helping the Accused to (a) restrain PW1 so that the group of 5 could beat him up and (b) assault PW3 when she struggled with the Accused.

215 The Prosecution was of the view that the evidence against the Accused for rioting was overwhelming. The arguments that the Accused was not a member of the group of 7 and that he was trying to stop the fight were ludicrous and ought to be rejected for the reasons below.

The Accused knew that his friends were going to assault PW1

216 At least five minutes before the riot, the Accused knew that the group of 5 was going to beat up PW1 as they were unhappy with him over an earlier incident. While the Accused admitted that (a) as early as 1 plus am, he knew that Brandon had a problem with PW1in Skyline and (b) sometime shortly before 3.44am (while walking back from area X to SLT), Cyrus asked him whether he wanted to join them to confront PW1, he denied knowing that there would be trouble or that the group of 5 would beat up PW1. The Prosecution was of the view that this was inconceivable as the Accused had admitted that when Cyrus invited him to join the confrontation, Cyrus had used words to the effect of wanting to scare PW1 and the Accused had admitted that he had surmised that the group of 5 wanted to intimidate PW1. Based on these admissions, the Prosecution submitted that the Accused would have clearly known that the group of 5 intended to assault PW1.

217 The Prosecution also pointed out that the same was understood by PW6 when he testified that Cyrus said “let’s go teach him a lesson” to the rest of the group of 5, a few minutes later at 3.48am. While the Accused denied being with the group of 5 when Cyrus said this (either at sculpture A^{[note: 594]} or at the smoking corner^{[note: 595]}) and claimed that he was at sculpture B^{[note: 596]}, Exhibit P3 did not support his evidence.

218 Firstly, Exhibit P3 showed that, less than two minutes before the riot, the Accused, the group of 5 and their friends had assembled at the area where the structures and the smoking corner were shortly before the riot. Exhibit P3 showed that for 27 seconds, between timestamp 03.46.40 – 03.47.07, the group of 5, the Accused and their friends had left area C to walk towards the structures. Exhibit P3 also captured that Steven with his arm around the Accused while they walked towards the structures together. The Prosecution submitted that it was undeniable that the Accused, the group of 5 and their friends were heading towards the same location. Additionally, from the way all of them suddenly left Area C and walked towards the structures, it would appear that someone had called out to them to assemble there.

219 Secondly, while the Accused had identified a silhouette behind structure B at 3:48:00 to be his, proving that he was at structure B alone before the group of 5 confronted PW1, Exhibit P3 did not support his claim. The court had noted that based on that silhouette that the Accused had identified to be himself, the Accused was with another person at that time^{[note: 597]} and by timestamp 03.48.31 (less than 30 seconds before the confrontation), there was no one at sculpture B. The Accused’s account that he was alone at structure B just before the riot took place, was therefore disproved by Exhibit P3.

220 The Prosecution also highlighted that the distance between sculptures A and B was only 7.5 metres and the distance between sculpture B to the smoking corner was 11 metres. The Prosecution submitted that the said sculptures and the smoking corner were near to each other and were merely a few steps apart. Hence, as pointed out by PW6 in his oral testimony, even if it was accepted that the Accused was not with the group of 5 at the smoking corner when Cyrus said loudly in an agitated manner “let’s go teach him a lesson”, the Accused would have been nearby. If the Accused’s version, that he was at sculpture B in the last minute leading to the confrontation was accepted, at its height, this would mean that the Accused was only a short distance away from the group of 5 and he would still have heard Cyrus give the directions to “go teach [PW1] a lesson”.

221 Exhibit P3 also clearly showed that before the Accused grabbed PW1, he already knew that the group of 5 had turned violent and had assaulted PW1 because he had watched them do so. The Accused had also admitted to the same.

222 For the above reasons, the Prosecution submitted that the evidence was clear that the Accused knew ahead of the riot that the group of 5 intended to assault PW1and had in fact, witnessed them do so before he physically attacked PW1.

Exhibit P3 showed that the group of 7 had approached the 2 victims

223 Exhibit P3 clearly showed that a large group consisting of the group of 7 and their friends^{[note: 598]} had approached the 2 victims at Area C and this group had come from the same direction^{[note: 599]}. In cross-examination, the Accused also agreed that Exhibit P3 had shown this^{[note: 600]}.

224 The Prosecution also pointed out that when moving into Area C for the confrontation, Exhibit P3 had captured Steven walking in between the Accused and DW2 before he sped up towards the 2 victims. The Prosecution submitted that the evidence was therefore clear that the Accused and DW2 were moving together with the group of 5 into Area C to approach the 2 victims and they formed one big group, i.e. the group of 7.

225 Furthermore, Exhibit P3 showed the Accused and DW2 watching the group of 5 assault PW1 as they continued to walk towards them. The Prosecution submitted that if the Accused genuinely did not want to join the group of 5 to assault PW1, he would not have moved off with the group of 5 to walk into Area C knowing that they were going to confront PW1. It also did not appear from Exhibit P3 that the Accused had wanted to avoid the confrontation or leave the scene to buy cigarettes. In fact, Exhibit P3 clearly showed the Accused walking into Area C because he had intended to join the group of 5 to assault PW1.

Exhibit P3 corroborated the Prosecution’s witnesses that the Accused had restrained PW1 to enable the group of 5 to assault him

226 On reaching Area C, Exhibit P3 captured the Accused watching the group of 5 punch and kick PW1 and PW3 like a hawk while he waited for his opportunity to join them. The Accused was evidently on standby mode during this time to move in and help the group of 5 as Exhibit P3 captured him swiftly moving towards PW1 from behind to grab him and seal off his escape path when he was moving backwards, away from the group of 5. From the moment the Accused grabbed PW1, he refused to let go of him until the group of 5 caught up and continued to assault PW1.

227 The evidence from PW1, PW3 and PW4 was unequivocal that the Accused had grabbed PW1 for some time to restrain him and prevent him from escaping from the group of 5. PW5 also corroborated these witnesses and explained that, based on her observation at the scene, she did not think that that the Accused was helping PW1^{[note: 601]} as the Accused had “restricted” PW1’s arms when he grabbed PW1^{[note: 602]}.

228 PW6 also corroborated their evidence as he confirmed that the Accused’s act of grabbing onto PW1 allowed him and the rest of the members of the group of 5 to catch up and continue assaulting PW1. PW1 and PW3 testified that the Accused had continued to grab and restrain PW1 even after the group of 5 had surrounded them. The Accused only let go of PW1 after PW3 had punched the Accused to get him to release PW1.

229 Exhibit P3 corroborated the evidence from the Prosecution’s witnesses as it showed that the Accused had grabbed onto PW1 for 14 seconds (from timestamp 03.49.17 – 03.49.31)^{[note: 603]}. These 14 seconds was long enough to enable the group of 5 to catch up and assault PW1.

230 Timestamp 03.49.20 – 03.49.23 of Exhibit P3 also corroborated PW1’s evidence that he had an “opening” and was trying to run away from the group of 5 but was unable to do so because the Accused had restrained him at the waist with a lot of force. As pointed out by PW1, timestamp 03.49.21 – 03.49.22 showed the Accused using both hands to pull him backwards with much force. The Prosecution submitted that the purpose of the Accused’s actions was clear- it was to prevent PW1 from running in the direction where the coast was clear of the group of 5. This intention of the Accused was also obvious to DW2 who had been watching the whole incident^{[note: 604]} and he stepped in to help the Accused restrain PW1 and to prevent him from running away. Exhibit P3 clearly showed that the Accused had participated in the group attack by restraining PW1 with help from DW2 to enable the group of 5 to catch up and continue assaulting PW1.

231 The Prosecution submitted that the Accused’s argument that he was “trying to stop the fight” by pulling PW1 away from the group of 5 was ludicrous as it was clearly contrary to the objective evidence in Exhibit P3. Exhibit P3 had captured the Accused grabbing and holding onto PW1 for 14 seconds and he had even pulled PW1 away from the direction that he was trying to run towards. The Accused had also admitted in his long statement marked D8 and in his oral testimony that when he grabbed PW1, PW1 had struggled with him. Despite this, the Accused refused to let go of PW1. The Prosecution was of the view that it made any logical sense that the Accused was in any manner helping PW1. The evidence was clear that PW1 had struggled with the Accused because he was trying to break free from the Accused and run away. That would have been the logical explanation as to why PW1 had struggled with the Accused.

232 The Prosecution also submitted that while the Accused had claimed that he might have poorly executed his intention to help PW1 as he had panicked during the incident, that was inconsistent with the evidence presented. First, Exhibit P3 showed that the Accused was calm when he continued to walk into area C while watching the group of 5 assault PW1. As this was undeniably clear, the Accused then claimed under cross- examination that Exhibit P3 did not “accurately depict how [he] was feeling”^{[note: 605]}. The Prosecution was of the view that Exhibit P3 spoke for itself and showed that the Accused was not at all panicky.

233 Second, the Accused had testified that he had seen many fights and broken up several of them and he would not have panicked when he saw the group of 5 assault PW1. The Prosecution was of the view that based on the Accused’s vast experience with fights, he would have known that PW1 was trying to escape as he was outnumbered by the group. As such, as soon as the Accused saw PW1 move away from the group of 5, he swiftly moved in to grab PW1 to prevent him from escaping. The Prosecution submitted that the Accused had played a pivotal role in the riot as PW1 would have otherwise escaped if the Accused had not grabbed PW1.

The Accused had put on a show for the recording of D4

234 Exhibit D4 which was recorded by PW5 shortly after the riot had captured the Accused asserting that he had stopped the fight but got hit. The Prosecution submitted that this was not an honest and candid account by the Accused. The Prosecution was of the view that the evidence clearly showed clearly that from some distance away, the Accused had known that PW5 was video recording the assailants to send to the police.

235 While PW5 was unable to pinpoint from Exhibit P3 the exact moment that she recorded Exhibit D4^{[note: 606]}, the Prosecution submitted that it was clear from Exhibit P3 that PW5 had started to use her handphone from timestamp 03.49.49 and seconds later, at timestamp 03.49.55, she could be seen holding up her handphone and facing it towards a group of people including some members of the group of 5. The Accused clearly saw PW5 actions as he was walking towards her from behind and at timestamp 03.49.59, the Accused had stopped right next to PW5. It was also at this juncture that PW5 distinctly stretched her right hand out with her handphone. The Prosecution submitted that it was obvious that PW5 was trying to video record the assailants.

236 The Prosecution also noted that Alvin saw PW5’s actions and tried to stop her from recording the incident. PW5 had testified that Alvin had pushed her handphone away at timestamp 03.50.02 of Exhibit P3 and he had motioned to her to stop filming^{[note: 607]} and had shouted at her to stop filming. PW5 also confirmed that the Accused was very near to her at that time and would have heard what Alvin had shouted at her. Exhibit P3 also confirmed this fact as it showed PW5 and Alvin standing right in front of the Accused when Alvin stopped PW5 from video recording the scene.

237 On a related note, the Prosecution highlighted that it was unclear who the Accused was talking to in Exhibit D4 when he loudly and clearly asserted that he stopped the fight but got hit. However, it was clear that the members of the group of 5 were captured in Exhibit D4 and Brandon was captured shouting “who protect you know” a few times^{[note: 608]}. The Prosecution was of the view that it did not make any sense that the Accused would be loudly telling anyone in the presence of his friends, i.e. the group of 5 that he was effectively trying to hinder their attack of PW1. This was especially so when the riot had just taken place and members of the group of 5 were clearly still angry as captured in Exhibit D4.

238 The Prosecution submitted that the only logical explanation as to why the Accused was captured clearly and loudly asserting his defence that he had stopped the fight in that hostile environment would be that he knew that PW5 was video recording the scene to send it to the police. The Accused therefore had made a quick and calculated decision to ensure that Exhibit D4 had captured him stating loud and clear that he had stopped the fight and was hit. For the above reasons, the Prosecution submitted that Exhibit D4 did not show the Accused giving a genuine account of his actions. The Prosecution also reiterated that Exhibit P3 clearly showed that the Accused had participated in the riot. What the Accused had said in Exhibit D4 about stopping the fight was therefore untrue.

DW2’s evidence should be treated with caution and in any event, it ran contrary to Exhibit P3

239 DW2’s evidence had corroborated the Accused’s defence that he was merely stopping the fight, but he was misunderstood to have participated in the riot. The Prosecution submitted that DW2’s evidence should be treated with caution as he was an interested party by virtue of his relationship with the Accused. DW2 was the biological brother of the Accused^{[note: 609]}. The Prosecution submitted that DW2’s eagerness to exonerate the Accused was clear from his repeating of the Accused’s defence. The Prosecution also noted that DW2 in cross-examination “ke[pt] saying the same answer”, that the Accused was trying to stop the fight or help PW1^{[note: 610]}.

240 The Prosecution also pointed out another example which showed that DW2 was keen to exonerate the Accused. When DW2 testified that during the riot, which he accepted was chaotic^{[note: 611]}, he remembered that the Accused had told PW3 something along the lines of “I stopped the fight and got hit”^{[note: 612]}. However, the Prosecution noted oddly that DW2 was unable to recall what the Accused and DW2 talked about shortly after the chaos had stopped^{[note: 613]}. The Prosecution was of the view that it was incredulous that DW2 could specifically (and coincidentally) recall the Accused asserting his defence during the chaos but could not remember the other conversations he had with the Accused after the chaos had stopped^{[note: 614]}. The Prosecution submitted that DW2’s eagerness to corroborate the Accused was clear and his evidence should be treated with caution.

241 The Prosecution also pointed out that Exhibit P3 did not support the evidence from the Accused and DW2. Examples included:

(a) DW2 had insisted that the Accused and him had come from a different direction from the group of 5 even though it cleared showed the same in Exhibit P3. When DW3 was cross-examined on this point, he had initially agreed with the Prosecution that they were all coming from the same direction. However, when he realised that he had answered wrong, he tried to “muddle” his answer by asking the Prosecution to repeat their question by suggesting that he did not understand the initial question^{[note: 615]}.

(b) Despite having watched Exhibit P3 for a few times on the day he gave evidence, DW2 had testified that the Accused had only pulled PW1 away and this had happened in a split second or 2 seconds as contrary to what was shown on Exhibit P3 (which showed that the Accused had grabbed PW1 for 14 seconds”. However, when the Prosecution suggested to DW2 that that was not reflected in Exhibit P3, DW2 then changed his evidence to the Accused was struggling to help PW1 because PW1 was physically bigger than the Accused^{[note: 616]}.

242 The Prosecution therefore urged me to reject the Accused’s defence.

On issues raised by the Defence

The Prosecution’s witnesses were credible and corroborated by Exhibit P3

243 The Prosecution noted that the Defence had asserted that the Prosecution’s witnesses, i.e. PW1, PW3, PW4, PW5 and PW6 (collectively, “the 5 witnesses”) were not credible and reliable when they incriminated the Accused to have participated in the riot as:

(a) Their memories would have been impaired because:

(i) They were intoxicated; and

(ii) The incident happened more than two years before they gave evidence in court

(collectively “the First Reason”);

(b) Their evidence were mere opinions of what was captured on Exhibit P3 (“the Second Reason”);

(c) There were inconsistencies in their evidence (“the Third Reason”);

(d) Due to the chaos during the riot, they were confused on whether the accused was trying to help PW1 or restrain PW1 to enable the group of 5 to continue assaulting PW1 (“the Fourth Reason”); and

(e) PW3 had testified under cross-examination that she did not know what was the Accused’s intention when he had stepped in and had physical contact with PW1 while PW4, PW5 and PW6 had agreed in cross-examination that it was possible that the Accused was trying to stop the fight (“the Fifth Reason”).

244 The Prosecution submitted that the above reasons did not show that the 5 witnesses were incredible or unreliable. The Prosecution highlighted that the evidence on material issues from the witnesses were corroborated by Exhibit P3 - the Accused had grabbed onto PW1 for some time to enable the group of 5 to catch up and continue assaulting him. Additionally, the Accused knew ahead of the riot that a confrontation would take place as he had admitted that Cyrus had asked him to join in the confrontation with PW1. Furthermore, the Accused had admitted that he did in fact see the group of 5 punch and kick PW1 before he stepped in and had physical contact with PW1. Exhibit P3 clearly showed the Accused watching the group of 5 assault PW1 before making the calculated move to grab PW1 from behind when he was trying to move away from the group of 5.

245 In relation to the First Reason, while the witnesses were intoxicated, the Prosecution noted that Exhibit P3 showed that these witnesses were alert and aware of the events that were happening during the riot. Further, even though the incident happened some time before they testified in court, their crucial evidence that the Accused had grabbed PW1 for some time to enable the group of 5 to catch up and assault him was corroborated by Exhibit P3. The mere fact that some time had lapsed from the date of the incident or that they were intoxicated did not in any way showed that the witnesses were incredible or unreliable.

246 In relation to the Second Reason, the Prosecution was of the view that the witnesses had given evidence based on their memories of what had happened at the scene and were not merely interpreting or giving their opinion on what was captured on Exhibit P3. The witnesses were referred to Exhibit P3 for the purpose of explaining what was captured on Exhibit P3 based on their presence at the scene. For instance, PW5 was specifically asked during cross-examination whether her evidence was based on memory of what had happened at the scene or based on P3 and she testified that it was based on her memory^{[note: 617]}. In any event, Exhibit P3 clearly captured the Accused’s participation in the riot.

247 In relation to the Third Reason, while there were indeed inconsistencies in the witnesses’ evidence, the Prosecution was of the view that the inconsistencies were immaterial. For instance, the Defence had pointed out that PW1, PW4 and PW5 had given inconsistent evidence on the places they had visited before arriving at Skyline club. Such inconsistencies had no bearing on the charge and showed that the witnesses did not collude to corroborate their evidence.

248 As for the Defence’s assertion that the evidence from PW6 and PW4 were internally inconsistent in that they had initially testified that they saw the Accused punch PW1 but recanted, the Prosecution was of the view that that was immaterial because it was not their case that the Accused had punched PW1. The Prosecution’s case was that the Accused had facilitated in the riot by grabbing onto PW1 for some time to prevent him from escaping from the group of 5 and enable them to continue assaulting him and this was captured on Exhibit P3.

249 In relation to the Fourth Reason, the Prosecution submitted that that in no way had casted doubt that the Accused had intentionally prevented PW1 from escaping from the group of 5 as Exhibit P3 had captured him doing so. The evidence from PW1., PW3, PW4 and PW5 were unequivocal that the Accused had restrained PW1 to prevent him from running away. Furthermore, PW6 had also confirmed that it was because of the Accused’s act of grabbing onto PW1 which had allowed him and the rest of the members of the group of 5 to catch up and to continue assaulting PW1. Exhibit P3 corroborated the witnesses’ evidence and clearly showed the Accused restraining PW1 to enable the group of 5 to continue assaulting him.

250 In relation to the Fifth Reason, the Defence had asked PW3, PW4, PW5 and PW6 in cross-examination was to whether it was “possible” that the Accused was trying to stop the fight and they either replied in the affirmative or did not disagree with the Defence. The issue was with the question. The question involved speculation on the Accused’s intention, which the witnesses would not have known for a fact. The Prosecution noted that similar observations had been made by the court when the Defence Counsel cross examined PW4 on a series of possibilities. The court also noted that PW4 did not agree with the Defence’s position but would have to agree based on the hypothetical questions posed to him^{[note: 618]}. However, in subsequent evidence given by PW4 under cross-examination, it clearly showed that he had not given inconsistent evidence^{[note: 619]}.

251 The Prosecution also pointed out that the Defence had not proffered any cogent explanation on why (a) the Accused had held onto PW1 for 14 seconds; (b) struggled so hard with him; (c) pulled him backwards from the direction he was trying to run to where the coast was clear of the group of 5; and (d) only released PW1 after the group of 5 had caught up, surrounded him and PW3 had to punch the Accused to get him to release PW1. The Prosecution submitted that the only logical explanation for the Accused’s actions (which was supported by Exhibit P3) was that the Accused had prevented PW1 from escaping so that the group of 5 could continue to assault him.

Failure by the Prosecution to call other co-accused who had pleaded guilty

252 The Defence had contended that the Prosecution had failed to discharge its evidential burden because it did not call four material witnesses to testify, i.e. the co-accused persons who pleaded guilty, namely, Cyrus, Brandon, Steven and Alvin (collectively “the 4 witnesses”). The Prosecution noted that the 4 witnesses were offered to the Defence at the close of the Prosecution’s case and necessary arrangements were made for them to attend court so that the Defence could interview them. The Prosecution also noted that the Defence had declined to call the witnesses after interviewing three of them.

253 Even though the Prosecution did not call the 4 witnesses to testify, the Prosecution submitted that they had discharged the evidential burden because there was overwhelming evidence against the Accused at the trial. In particular, the objective evidence, Exhibit P3 clearly incriminated the Accused for his involvement in the riot.

254 The Prosecution reiterated that Exhibit P3 showed the group of 7 approaching PW1 and PW3 in area C as one big group, the Accused and DW2 watching the group of 5 assault the 2 victims, the Accused swiftly moving in and grabbing PW1 from behind for 14 seconds and struggling with him, DW2 stepping in to help the Accused restrain PW1. All this allowed the group of 5 to catch up with PW1 and to continue to assault him. Exhibit P3 also showed the Accused and DW2 subsequently assaulting PW3 who was trying to protect PW1. The Prosecution was of the view that Exhibit P3 clearly corroborated the Prosecution’s witnesses’ evidence that the Accused had restrained PW1 to enable the group of 5 to assault him

255 The Prosecution further submitted that even if the court were to accept the Accused’s evidence that he had rejected Cyrus’ invitation to join him and some others to approach PW1, by the Accused’s admission, he knew that there would be a confrontation. Further, Exhibit P3 showed the Accused watching the group of 5 attack PW1 before stepping in to help them to prevent PW1 from escaping. So, even if the court were to accept the argument that the Accused did not earlier agree to join the group of 5 to teach PW1 a lesson, Exhibit P3 clearly showed that the Accused had shared the common object with the group of 5 to cause hurt to PW1 when he moved in to grab PW1 from behind after seeing the group of 5 assault him and he prevented PW1 from escaping the moment when he saw PW1 trying to move away from the group of 5. The inference that the Accused had shared the common object with the group of 5 to cause hurt to PW1 could clearly be drawn from Exhibit P3.

256 The Prosecution noted that the Defence had argued that the Prosecution should have called the 4 witnesses to testify as there was inconsistent evidence on what had sparked off the riot, i.e. was it because Brandon and PW1 had an earlier incident in Skyline club or was it because PW1 had threatened to break Cyrus’ neck. The Prosecution was of the view that this inconsistency was immaterial to the charge. What was pertinent was that the Accused had admitted that he had known that members of the group of 5 were going to confront PW1 as they were unhappy with him and he had watched them assault PW1 before joining in to help them restrain PW1.

257 During parties’ submissions, I had also queried, in the light of Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25 (“Nabill”), as to which party had the duty to call a witness to testify given the following evidence led at trial:

(a) The Accused had testified that he turned down Cyrus’ invitation to join him and some others to confront PW1 (“Point on Cyrus’ invitation”).

(b) DW2 had testified that during the riot, Alvin had punched his face and DW2 told Alvin to “calm down and not to fight” while raising his hands with palms facing outwards at Alvin at about timestamp 3:49:30 of Exhibit P3 (“Point on DW2’s interaction with Alvin”).

258 The Prosecution submitted that at the outset, the Prosecution did not have a duty to call any witness (Nabill at [57]). The key question was whether the Prosecution had discharged its evidential burden without calling witnesses to testify on the issues above.

259 On the issue of the Prosecution’s additional disclosure obligation (“ADO”) pursuant to Nabill, the ADO required the Prosecution to disclose to the Defence, statements of material witnesses who could be expected to confirm or, conversely, contradict material aspects of the specific account of events given by the accused (Nabill at [18]), if these witnesses were not called as Prosecution witnesses (Nabill at [39] and [50]).

260 The Prosecution was of the view that they had complied with the ADO. The four co-accused persons who had pleaded guilty were Cyrus, Brandon, Steven and Alvin (collectively, “the 4 witnesses”), could have “confirmed or, conversely, contradicted material aspects of the specific account of events”. As they were not called as Prosecution witnesses, pursuant to ADO, the Prosecution had disclosed their statements to the Defence. The Prosecution reiterated that the 4 witnesses were offered to the Defence at the close of the Prosecution’s case and necessary arrangements were made for them to attend court so that the Defence could interview them. The Defence had declined to call the witnesses after interviewing three of them. The position remained the same after the statements of the 4 witnesses were disclosed to the Defence.

261 On the question of whether the Prosecution had discharged its evidential burden despite not calling witnesses to testify on the above two points, the Prosecution’s position was that they had discharged their burden of proof.

262 As a preliminary point to note, the CA in Nabill at [57] and [69] had acknowledged that (a) the Prosecution had no duty to call any witness; and (b) the evidential burden could shift between parties respectively. At [70], the CA had stated that, in relation to whether the Prosecution had the duty to call a witness who could be expected to confirm or contradict a defence in material aspects, this question squarely engaged the Prosecution’s evidential burden to adduce sufficient evidence to rebut a defence raised by the accused person that had properly come into issue. The CA elaborated that “[w]e are concerned here with the narrow situation where an accused person has advanced a specific defence which identifies specific material witnesses and the Prosecution, despite having had access to these witnesses, has chosen not to call them.”

263 The CA had clarified at [71] in Nabill that:

“ To be clear, the Prosecution would not need to call these witnesses if it is satisfied that it can rely on other evidence to discharge its evidential burden, such as, for example, close circuit television (“CCTV”) records which directly contradict the accused person’s defence. Neither would there be any question of the Prosecution having to discharge its evidential burden by calling these witnesses if the accused person’s defence is patently and inherently incredible to begin with . Subject to these obvious limitations, the Prosecution runs a real risk that it will be found to have failed to discharge its evidential burden on material facts in issue if the Defence has adduced evidence that is not inherently incredible and the Prosecution fails to call the relevant material witnesses to rebut that evidence.”

264 In relation to the point on Cyrus’ invitation which the Accused had raised in a bid to support his defence that he was not part of the riot and he was merely trying to “stop the fight”, the Prosecution was of the view that they need not call a rebuttal witness as they could rely on CCTV footage, i.e. Exhibit P3, to directly contradict the Accused’s defence [Nabill at [71]]. To reiterate the Prosecution’s submissions, Exhibit P3 clearly showed the Accused participating in the riot.

265 In any event, the Prosecution submitted that even if the court accepted the Accused’s evidence on the point on Cyrus’ invitation, it bore highlighting that this issue only related to their interaction prior to the riot and at best, showed that there was no pre-arranged plan or consent by the Accused to join the riot. However, the Prosecution was not required to prove that there was a pre-arranged plan or that the Accused had consented to join the group of 5 to assault PW1. Exhibit P3 showed that the common object was formed on the spot as it captured the Accused watching the group of 5 assault PW1 (with PW3 staying close to protect him) before joining in to help the group of 5.

266 The Prosecution also reiterated that the Defence had not proffered any cogent explanation for the Accused’s actions captured on P3 on (a) why the Accused had held onto PW1 for 14 seconds; (b) struggled so hard with him; (c) pulled him backwards from the direction he was trying to run to where the coast was clear of the group of 5; and (d) the Accused had only released PW1 after the group of 5 caught up, surrounded him and PW3 had to punch the Accused to get him to release PW1. In summary, the Prosecution submitted that the Accused was unable to explain away his incriminating actions captured on Exhibit P3. The evidence from Exhibit P3 against the Accused was simply overwhelming and the Prosecution had discharged its evidential burden without the need to call Cyrus as a witness to testify on the Point on Cyrus’ invitation.

267 For completeness, the Prosecution pointed out that the fact that the Defence had chosen not to call any of the 4 witnesses despite having interviewed three of them (including Cyrus) and having seen their statements, spoke volumes on the veracity of the Point on Cyrus’ invitation.

268 In relation to the Point on DW2’s interaction with Alvin, the Prosecution was of the view that the same arguments applied in that the Prosecution had discharged its evidential burden without the need to call Alvin as a witness

269 Additionally, the Accused’s defence, i.e. that he was stopping the fight, did not identify Alvin as a specific material witness (Nabill at [70]). The evidential burden, therefore, had not shifted onto the Prosecution to adduce evidence to rebut the Point on DW2’s interaction with Alvin.

270 Also, the Point on DW2’s interaction with Alvin did not cast doubt on the incriminating actions of the Accused which were captured on Exhibit P3. As explained earlier, the Prosecution had proven the 3 elements required to make out the charge.

271 For completeness, the Prosecution pointed out that, the Accused and DW2 had confirmed in oral testimony that they were not previously acquainted with Alvin, and they had only met Alvin on the day of the incident itself. Based on this, Alvin could have mistakenly punched DW2 as they were not acquainted prior to the riot. Exhibit P3 showed that after DW2 had gestured with his palms out facing Alvin and said something to Alvin, Alvin left DW2 alone and continued to go after PW1 to assault him. The logical conclusion would be that, Alvin had left DW2 alone as the latter had informed Alvin that he was from his group.

272 The Prosecution was therefore of the view that they had led sufficient evidence and discharged the evidential burden to prove the charge against the Accused.

The Defence’s annotation of the direction that the Accused was walking was clearly contrary to Exhibit P3

273 The Prosecution had noted that the Defence had had drawn arrows at timestamp 03.49.03 in Exhibit P3, to show that the Accused was walking on the left of the screen, away from area C where Cyrus, Nelson and Alvin were confronting PW1while Steven and Brandon were walking towards the confrontation. The Prosecution was of the view that this was clearly by contradicted Exhibit P3 as Exhibit P3 clearly showed the Accused facing the confrontation, walking towards it, in the same direction as Steven and Brandon. The Prosecution submitted that the Accused was clearly not facing or walking in the direction of the arrow that the Defence drew on his left. Contrary to the Defence’s submissions, the Accused was captured clearly on P3 walking towards the commotion to join the group of 5 and did not appear at any point in time that he wanted to walk away from the commotion to buy cigarettes or go home.

The fact that the Accused did not punch or kick PW1 did not matter

274 The Defence had contended that the fact that the Accused did not punch or kick PW1 like the group of 5 showed that the Accused did not intend to hurt PW1. The Prosecution had submitted that that was a mere speculation that the Accused could have assaulted PW1 in a more effective manner. That had little or no bearing on whether the Accused intended to cause hurt to PW1. Such a speculation artificially and wrongly presumed that any and every attack was always well thought out, and that all assailants thought alike^{[note: 620]}. That would be even more untrue where, as in the present case, the attack occurred on the spur of the moment.

275 In any event, the manner in which the Accused had facilitated in the riot showed that he had played a pivotal role as his act of restraining PW1 had caused the latter to endure a longer assault by the group of 5. That was far more vicious than simply punching or kicking PW1.

The Accused was not acting in self-defence against PW3

276 The Defence had asserted that the Accused was acting in self-defence against PW3 as she had punched him.

277 The Prosecution was of the view that for the Accused to avail himself of the defence, the Accused must prove on a balance of probabilities that he had cumulatively fulfilled two pre-conditions and two conditions. The Accused must show that:

(a) An offence affecting the human body has been committed or is reasonably apprehended: s 97(a) of the Penal Code; Tan Chor Jin v PP [2008] 4 SLR(R) 306 (CA) (“Tan Chor Jin”)26 at [46(a)];

(b) There was no time to seek the protection of public authorities: s 99(3) of the Penal Code; Tan Chor Jin at [46(b)];

(c) At the time of acting in private defence, he reasonably apprehended danger due to an attempt or a threat by the victim to commit an offence affecting the body: s 102 of the Penal Code; Tan Chor Jin at [46(d)]; and

(d) The harm caused to the victim was reasonably necessary in private defence with due allowance given to the dire circumstances under which he was acting: s 99(4) of the Penal Code; Tan Chor Jin at [46(f)].

278 The Prosecution submitted that the Accused was not acting in self-defence against PW3. Although PW3 had punched the Accused in the face and tried to hit him further (before he grabbed PW3), PW3’s action of punching the Accused had to be looked at in context. PW3 did not punch the Accused for a nefarious reason. PW3 had to punch the Accused a few times in the face to get him to release PW1 because the Accused had refused to do so even after the group of 5 had caught up with PW1 and continued to assault him. PW3 was clearly trying to help PW1 break free from the Accused. By pulling PW3 away from PW1, pushing PW3 away and thereafter grabbing her hand and pressing it against her throat when she tried to move towards PW1, the Accused was clearly trying to keep PW3 away from PW1 so that she could not help to protect him from the group of 5. Exhibit P3 corroborated the above and showed that the Accused was not acting in self-defence. The Prosecution submitted that he was in fact enabling the group of 5 to assault PW1.

279 The Prosecution submitted that PW3 was exercising her right of private defence as she was trying to protect PW1. PW3 was able to satisfy the abovesaid conditions to succeed on private defence as:

(a) The group of 5 and the Accused had clearly committed an offence affecting the human body before PW3 assaulted the Accused. The group of 5 had punched and kicked PW1 and the Accused had joined in to restrain PW1 and prevent him from running away from the group of 5.

(b) There was no time for PW3 to seek the protection of public authorities as the attack on PW had occurred suddenly.

(c) At the time of acting in private defence, i.e. when PW3 punched the Accused, she reasonably apprehended danger to PW1 and herself. The 2 victims were outnumbered by the group who had surrounded them and assaulted them, with the Accused viciously restraining PW1.

(d) The harm caused to the Accused, if at all, was minimal (he did not even consult a doctor) and was reasonably necessary in private defence with due allowance given to the dire circumstances under which PW3 was acting.

280 In light of the above, when the Accused let go of PW1 after being punched by PW3, and he turned to deal with PW3 by grabbing and pushing her, his actions could not be said to have been in exercise of self-defence. The Prosecution also pointed out that the Accused had pushed PW3 away when she tried to run towards PW1 to protect him from being beaten up by the group of 5- this was the reason why PW3 had tried to hit the Accused again but was pushed backwards by the Accused. Put in other words, if the Accused had not (a) grabbed and restrained PW1 enabling the group to assault him; and (b) prevented PW3 from returning to PW1’s side to protect him from the group of 5, PW3 would not have punched the Accused.

281 Given that the Accused was one of the aggressors from the start and PW3 was merely exercising her right of private defence against the Accused when she punched him, the force that the Accused used on PW3 during this time to tackle her, was unlawful.

The Defence had not been prejudiced by the way the Prosecution conducted its case

282 The Prosecution noted that the Defence had contended that the Prosecution had prejudiced their preparation of the defence in the following ways:

(a) By refusing to give the exact order of the witnesses that the Prosecution intended to call from start to finish and failing to give prior notice that it was going to call PW7 as the seventh witness;

(b) By offering the 4 co-accused as witnesses to the Defence at the close of the Prosecution’s case without giving prior notice;

(c) Causing Cyrus, Brandon and Steven to become hostile towards the Defence, making it “almost impossible” for the Defence Counsel to “illicit their cooperation” during the interviews;

(d) Intentionally withholding Exhibit D4 and Extending a copy of Exhibit D4 to the Defence on the first day of trial, before the trial commenced;

(e) Belatedly extending to the Defence the statements that the 4 co-accused’s witnesses gave to the police, in breach of obligations pursuant to “Nabill” and Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32 (“Kadar”).

283 On the Issue of the exact order of witnesses, the Defence had alleged that the Prosecution had refused to give the order of witnesses when they made the request on 15 November 2020. The Prosecution submitted that the Defence had omitted some of the facts:

(a) First, the Prosecution had informed the Defence of the general order of the witnesses even before the trial had commenced on 13 May 2019 but they had demanded the exact sequence of witnesses from start to finish.

(b) Second, the Prosecution had explained that it would need to assess the progress of the trial and take the availability of the witnesses into consideration.

(c) Third, the Prosecution had, during the course of the trial (on 15 November 2020 and on other dates) provided the Defence with the sequence of the witnesses that it intended to call^{[note: 621]}.

(d) Fourth, while the Prosecution had provided the order of the witnesses, it had made clear to the Defence that this was subject to change and it had to assess the progress of the trial.

(e) Fifth, the Defence had raised this issue with the court and the court had informed them that the Prosecution was under no obligation to provide an exact sequence of witnesses^{[note: 622]}.

(f) Sixth, in any event, the Defence was given the Prosecution’s list of witnesses as far back as 20 November 2017^{[note: 623]} under the CCDC regime. This was almost 1 ½ years before the trial commenced. The Defence had ample time to prepare for the trial and could not be said to have suffered any prejudice whatsoever.

284 On the issue of offering the 4 co-accused witnesses at the close of the Prosecution’s case, the Defence had alleged that the Prosecution “had not been transparent and forthcoming with the Defence on how it planned to run its case at trial” and it had been “unfair to the Defence” by offering the 4 witnesses to the Defence without giving prior notice. The Prosecution submitted that this allegation was a non-starter.

285 After leading sufficient evidence to prove the charge against the Accused, a decision was made by the Prosecution to offer the 4 witnesses to the Defence. To that end, necessary arrangements were made for these witnesses to attend court so that the Defence Counsel could interview them. The Prosecution was of the view that this did not in any way showed that the Prosecution had been unfair to the Defence or had not been transparent.

286 On the issue of hostility of Cyrus, Brandon and Steven, the Prosecution was of the view that the suggestion by the Defence that the Prosecution was responsible for the witnesses’ hostility was entirely without basis. The witnesses were activated to attend to court in anticipation of the close of the Prosecution’s case. They were duly offered to the Defence and made available for Defence Counsel to interview^{[note: 624]}.

287 On the issue of Exhibit D4, the Defence had alleged that the Prosecution had access to Exhibit D4 from the day of the incident but had withheld Exhibit D4 from the Defence until the first day of the trial on 13 May 2019. The Prosecution was surprised that the Defence had only alleged that the Prosecution had withheld Exhibit D4 for a nefarious purpose at the submissions stage. The Defence had not raised this allegation earlier nor did it pursue this with PW7 when he took the stand to give evidence.

288 The Prosecution submitted that there was no truth in the Defence’s allegation. As reflected in the Notes of Evidence, the Prosecution had explained to the court on the first day of trial on 13 May 2019 that Exhibit D4 was only recently surfaced to the Prosecution, PW7 Janson Lee had handed to the Prosecution a copy for the Defence on that morning itself and the Prosecution had handed the same to the Defence on the same day^{[note: 625]}. The Defence had not raised any issue or had pursued this line of enquiry although it had ample opportunity to do so.

289 For completeness, the Prosecution pointed out that they had apologized for the development on Exhibit D4 and they had informed the court that they would not have any objections if the Defence required time to study the new evidence and take instructions^{[note: 626]}. However, the Defence had declined to do so. The Prosecution was of the view that the Defence had failed to show that it was prejudiced in any manner.

290 On the issue about when the statements of the 4 witnesses were disclosed, the Defence had asserted in their submissions that these statements are “pieces of objective and contemporaneous evidence, as they clearly largely support [the Accused]’s defence that he did not know that [a]fight was going to occur, and that he had gotten involved in the hopes (sic) of separating the victims and the attackers. Without going into the content of these statements as they were inadmissible, the Prosecution was of the view that Defence had over-stated the value of these statements. This was evident from the Defence declining to call any of the 4 witnesses after interviewing three of them in November 2019 and after having had the opportunity to peruse their statements. In any event, the Prosecution was of the view that there was no evidence that the Defence had been prejudiced by the timing that the statements were given to them.

Conclusion

291 For the above reasons, the Prosecution submitted that they had proven the charge against the Accused beyond a reasonable doubt and the Prosecution urged me to find the Accused guilty and convict him on the charge

Defence’s Case ^{[note: 627]}

Introduction

292 The Defence’s position was that when the Accused and DW2 were on their way to the 7-Eleven located at the back of Singapore Land Tower to buy cigarettes before making their way home, they saw a confrontation near the exit of Singapore Land Tower, which very quickly escalated into a fight within a matter of seconds. The attackers (comprising the group of 5) kicked and punched PW1 and PW3 who was with him.

293 The Accused’s first instinct was to help PW1 who being beaten up by his attackers, by pulling him away from them. Unfortunately, his good intentions were completely misunderstood, as the victims wrongly assumed that he and DW2 were part of the attackers. Amid the chaos, PW3 wrongly assumed that the Accused was trying to pull PW1 away from her. She thus punched him a few times on the face and kept trying to punch him, which caused him to react in self-defence in the heat of the moment.

294 Despite his good intentions, the Accused was implicated as being part of the group of attackers. He was arrested on the same day and charged for rioting under Section 147 of the Penal Code.

Defence’s submissions – why Prosecution had failed to prove its case

295 The Defence submitted that the issue in this case was whether the Prosecution was able to prove its case beyond reasonable doubt, that the Accused was a member of the unlawful assembly comprising the group of 5, whose common object was to cause hurt to PW1 and PW3.

The law relating to burden of proof

296 The Defence had submitted that the Honourable Justice V.K. Rajah (“Rajah J”) had emphasized in Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] SGHC 129 (“Jagatheesan”) at [61], “the starting point of the analysis is not neutral. An accused is presumed innocent … until the Prosecution has discharged its burden of proof.”

297 The Defence also submitted that it was trite that for criminal matters, the burden rested on the Prosecution to prove beyond a reasonable doubt each and every element of the offence charged against an accused person^{[note: 628]}.

298 The Defence also referred me to the case of Mat v Public Prosecutor [1963] MLJ 233 which further expounded on the criminal threshold of “beyond a reasonable doubt” (cited with approval in Henry Edward Alexander Smart at [121]):

“The correct law for Magistrate’s to apply is as follows: If you accept the explanation given by or on behalf of the accused, you must of course acquit. But this does not entitle you to convict if you do not believe this explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt, as the onus of proving his guilt lies throughout on the prosecution. If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.”

299 The Defence also highlighted that based on current case law, the following principles could be drawn on the law relating to the burden of proof:

(a) The starting point of the analysis was not neutral. An accused was presumed innocent and this presumption would not be displaced until the Prosecution had discharged its burden of proof beyond a reasonable doubt.

(b) The gravest suspicion against the accused would not suffice.

(c) In order to secure a conviction, the evidence must be so strong against the accused, as to leave only a remote possibility in his favour.

(d) Even if the court did not believe the accused’s explanation, the accused was still entitled to an acquittal if there was reasonable doubt arising within the Prosecution’s case.

(e) The Prosecution’s theory of guilt must be supportable by reference to the evidence alone and not mere conjecture that sought to explain away gaps in the evidence.

(f) Reasonable doubt could arise by virtue of the lack of evidence submitted when such evidence is necessary to support the Prosecution’s theory of guilt.

Elements of a rioting offence under Section 147 of the Penal Code

300 Section 147 provided as follows:

147. Whoever is guilty of rioting shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to caning.

301 Section 146 of the Penal Code defined “rioting” as:

146. Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

302 Section 141 of the Penal Code defined “unlawful assembly” as:

141. An assembly of 5 or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is …

(c) to commit any offence.

303 As such, the Defence was of the view that following elements must be proven beyond reasonable doubt to establish the rioting charge against the Accused:

(a) That there was an assembly of five or more persons;

(b) That the common object of that assembly was to cause hurt to PW1 and PW3; and

(c) The Accused was a member of that assembly.

304 The Defence accepted that it was undisputed that at the material time, there was an unlawful assembly, composing the group of 5 who were listed in the Accused’s charge. The common object of the group of 5 was to cause hurt to PW1 and PW3^{[note: 629]}. In this regard, the Defence noted that the members of the group of 5 had pleaded guilty to a charge under Section 143 of the Penal Code.

305 The Defence submitted that the issue in this case was the third element, i.e. whether the Accused was indeed a member of that unlawful assembly, comprised of the group of 5, whose common object was to cause hurt to PW1 and PW3^{[note: 630]}.

306 On the issue of being a member of an unlawful assembly, the Defence highlighted that Section 142 provided:

142. Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

307 The Defence also referred me to the case of Lim Thiam Hor v Public Prosecutor [1996] 1 SLR(R) 758 (“Lim Thiam Hor”), where Yong Pung How CJ held (at [18]):

“It is of course well-settled law that a mere presence in an assembly of persons did not make the accused a member of an unlawful assembly, unless there was direct or circumstantial evidence to show that the accused shared the common object of the assembly. In my opinion, however, a person present at the assembly can be said to be a member of the assembly even if no overt act is proved against him. Provided the circumstances are such as to justify an inference that he associated himself, with the offending members, it may be inferred that he is a member of such an assembly. In every case, this question is one of fact as to whether he happens to be innocently present at the place of occurrence or was actually a member of the unlawful assembly: see Bishambar v State of Bihar AIR 1971 SC 2381.” (Emphasis added)

308 As Yong CJ emphasized in Lim Thiam Hor, “the question is one of fact as to whether [the accused person] happens to be innocently present at the place of occurrence or was actually a member of the unlawful assembly.” In this regard, the court is required to assess the totality of the evidence adduced by the Prosecution to determine whether the Prosecution has proven beyond reasonable doubt that Sean shared the common object of the unlawful assembly to cause hurt to PW1 and PW3.

Common object and common intention

(1) Whether common intention was relevant for the existence of a common object

309 In the Court of Appeal decision of Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 (“Lee Chez Kee”), it was held at [243] that “a subjective knowledge approach would also bring consistency with our courts’ current interpretation of s149 of the Penal Code.”

310 Section 149 and Section 34 of the Penal Code stipulated:

S149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence

S34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

311 At [244] - ]245] of Lim Chez Kee, the Court of Appeal cited the case of Public Prosecutor v Fazely bin Rahmat [2002] 2 SLR(R) 385, where the 2 accused persons were charged with being members of an unlawful assembly whose common object was to cause hurt with dangerous weapons. While the 2 accused persons did not deny that they were part of the gang that attacked the victim, they denied stabbing him and only admitted to punching and kicking him. The High Court found the 2 accused persons not guilty of murder but guilty of rioting. It held that the Prosecution had established that the common object of the gang was to look for rival gang members which was understood to mean beating them up. There was no evidence that weapons of any kind were discussed or contemplated. Although the Prosecution had relied on the first limb of S149 that murder was committed by one of the members of the unlawful assembly “in prosecution of the common object of that assembly”, the high Court interpreted the limb to require proof that the accused persons knew of the gang’s common object to cause hurt by dangerous weapons. This decision was upheld by the Court of Appeal in Public Prosecutor v Fazely bin Rahmat [2003] 2 SLR(R) 184.

312 In the light of the above, the Court of Appeal then, at [246] of Lee Chez Kee, indicated that the imputation of a subjective knowledge test on common intention (S34 PC) would therefore bring it to conformity with the approach already adopted by the courts in relation to the substantive similar s149 limb of “in prosecution of the common object”. It was also stated that “the expressions “common object” and “common intention” should be interpreted as meaning the same thing” and, given the similarity between the two sections, “a subjective knowledge approach to s 34 would bring it into conformity with s 149.”

313 The above was also corroborated by the learned authors of Criminal Procedure in Singapore and Malaysia where it was stated that “common intention and common object might mean different things or the same thing depending on the circumstances of the case.”

314 As such, the existence of a common object would be an inference of fact to be deduced from the facts and circumstances of each case, and this could be arrived at by considering “the nature of the assembly, the weapons used by the offenders and the behaviour of the assembly at or before the scene of occurrence.” The mere presence of an accused person in an assembly of persons did not render the accused as a member of the unlawful assembly unless there was direct or circumstantial evidence to show that the accused shared the common object of the assembly.

315 The Defence submitted that the determination on whether there was common intention between the Accused and the group of 5 was essential for the existence of a common object.

Why the Prosecution had failed to prove its case beyond reasonable doubt

316 The Defence submitted that the Prosecution had failed to prove its case beyond reasonable doubt that the Accused was a member of the unlawful assembly comprising the group of 5 as it had failed to prove that the Accused had associated himself with the group of 5 and shared in that group’s common object to cause hurt to PW1 and PW3 as evidenced by the following:

(1) The Prosecution’s witnesses were not consistent and credible

317 The Defence noted that the Court of Appeal in GCK had emphasized that the reliability of any witness’s observation (whether an eyewitness or an alleged victim) and account must be assessed in light of all the circumstances in each individual case (at [114]).

318 The Court of Appeal had stated that the evidential reliability of witness’s observation depended on both the objective circumstances and the subjective characteristics of the witness concerned. As the Court of Appeal stated at [108] of GCK:

“… An observation depends on several objective factors, among them, time, space, location, and line of sight. There are also subjective factors such as, on the one hand, possible intoxication, fatigue, impediments, intellectual defects, and, on the other hand, specialised training. Further, as elaborated in Sandz Solutions at [49]-[55], even after an observation is made, the process of memory recall and reconstruction is susceptible to error. The factors influencing the perception and recollection of a witness (whether an alleged victim or an eyewitness) permit of infinite variation and are not susceptible to cataloguing, much less generalisations.”

319 More crucially, the Court of Appeal in GCK had highlighted that the lack of internal consistency and/or external consistency in a witness’s evidence demonstrated weaknesses in the Prosecution’s own evidence, which generated reasonable doubt at [136] and [137], as follows:

“136 … given that the legal burden lies on the Prosecution throughout a trial, as part of its own case, the Prosecution must adduce sufficient evidence to establish the accused person’s guilt beyond a reasonable doubt on at least a prima facie basis. One example of a failure to do so would be where, after the Defence has been called, there are discrepancies in the accused person’s testimony, but there remain significant inconsistencies in the Prosecution’s case that nevertheless generate a reasonable doubt. In such a situation, the court would be obliged to acquit the accused person …

137 The Defence stressed that in either of these situations, the court’s task remained to properly articulate the reasonable doubt that had arisen within the Prosecution’s case. In other words, the judge should be able to particularise the specific weakness in the Prosecution’s own evidence that irrevocably lowered it to below the threshold of proof beyond a reasonable doubt. Such particularisation might include, among other things, an assessment of the internal consistency within the content of a witness’s testimony. It might also involve an assessment of the external consistency between a witness’s evidence and the extrinsic evidence, which included testing the former against the inherent probabilities and uncontroverted facts: see Sandz Solutions at [39]; see also the observations of this court in Thorben Langvad Linneberg v Leong Mei Kuen [2013] 1 SLR 207 at [13]-[14].”

320 The Defence noted that the Prosecution’s case appeared to be built primarily upon the testimonies of the two victims, PW1 and PW3, as well as the testimony of PW6, one of the co-accused persons. Further, the Prosecution seemed to suggest that the foregoing testimonies were well corroborated by the evidence of two eyewitnesses, PW4 and PW5, and the CCTV footage (Exhibit P3)^{[note: 631]}.

321 The Defence submitted that the Prosecution’s key witnesses were neither consistent nor credible. In particular, the testimony of PW6, one of the co-accused persons, completely undermined the Prosecution’s case against the Accused.

322 The Defence highlighted a particular portion of PW6’s evidence-in-chief as reproduced below^{[note: 632]}:

Q: Nelson,---

A: Yes, Sir.

Q: thank you for being honest. So, you didn’t see the accused hit Royson?

So, let me recap yesterday.

A: Yah, sure.

Q: You said that it was possible---

A: Mmm.

Q: that the accused went in to help Royson. Agree?

A: I agree, yah.

Q: Yah. And now, you testified that you didn’t see the accused hit Royson.

A: Yes, Sir.

…

Q: But now you’re saying you didn’t see the accused hitting Royson.

A: Mmm hmm. Yes.

Q: And you’re also saying it’s possible that the accused was helping Royson.

A: Yes.

Q: So in the light of your latest testimony---

A: Mmm hmm, yes.

Q: do you think it’s justified what the accused said? When he said “I tried to help, I also got hit. I tried to stop the fight, I also got hit.”

A: Yah, I think now it’s justified.

Q: Now, it’s justified. Why do say it’s justified?

A: Because after---after hearing what you said yesterday, about how Sean didn’t straightaway rush in like us, the 5 of us went---rush in.

Q: Go slowly, go slowly.

A: Oh, yah, sorry. Because after hearing what you said yesterday, about how Sean didn’t rush in together with the 5 of us, and how he didn’t attack when he had a chance to attack Royson. I think now it make sense that he might be trying to help, um, break out the fight.

Q: So, therefore, when the accused said, “I tried to help, I got hit”, he was telling the truth, agree?

A: I will agree.

323 The Defence also pointed out that that PW6 had also given the following testimony:

(a) As a co-accused, PW6 had candidly admitted a few times during cross-examination that “there’s a chance that the Accused was trying to help PW1 [Royson]” when the Accused went in to pull Royson, who was being attacked by the group of 5^{[note: 633]}. In this connection, PW6 had agreed with the Defence that the Accused “didn’t rush in together with the 5 of us, and how he didn’t attack when he had a chance to attack PW1. I think now it make sense that he might be trying to help, um, break [up] the fight.”^{[note: 634]}

(b) PW6 had materially contradicted his evidence-in-chief, when during cross-examination, he admitted that the Accused and DW2 were not together with the group of 5 when Cyrus pointed at PW1, identifying him as “the guy who threatened to break [his] neck”, and called upon the group to “teach [Royson] a lesson.”^{[note: 635]} PW6 also agreed that the Accused and DW2 were at another location, sculpture B^{[note: 636]}, and thus did not hear when Cyrus said, “Let’s go and teach him a lesson.” ^{[note: 637]}

(c) Furthermore, PW6 had admitted that he did not tell the truth during his examination-in-chief when he testified that he saw the Accused hit PW1 by punching him more than once^{[note: 638]}. When asked directly by the Court on whether he did or did not see the Accused punch PW1, PW6 admitted that he did not see the Accused punch PW1.

324 Based on the above, the Defence submitted that there were significant contradictions and weaknesses in the Prosecution’s case, which clearly generated reasonable doubt. Hence, it would be unsafe and contrary to the presumption of innocence for this Honourable Court to convict the Accused when reasonable doubt had arisen from within the case mounted by the Prosecution.

325 The Defence also submitted that the Prosecution’s key witnesses, PW1, PW3, PW4, PW5, and PW6, were neither credible nor reliable for the following reasons:

PW1

326 The Defence had submitted that PW1was not a reliable or consistent witness for the following reasons:

(a) PW1 had a mistaken perception that the reason why the Accused had grabbed him was to prevent him from running away. In this regard, PW1 had admitted that it was possible that he “could not tell the difference between who was helping [him] and who was assaulting [him].”^{[note: 639]} Hence, the Defence submitted that PW1 was not clear as to who was his friend or foe at the material time amidst all the chaos.

(b) PW1 had admitted that he was drunk at the material time of the incident^{[note: 640]} diminishing the credibility of his evidence.

(c) In any event, PW1 had admitted that his perception that the group “were not actively pursuing [him] until the Accused grabbed [him] and [he] fell to the ground” was not corroborated by Exhibit P3. When asked directly by the Court^{[note: 641]}, PW1 admitted that his evidence-in chief was “based on [his] own account and [he] felt it’s dishonest if [he] alter[s] it based on the video [he] watched.”^{[note: 642]}

327 The Defence submitted that this Court should give PW1’s evidence little, if any, weight, as it was his mere and mistaken perception that the Accused’s motivation was to prevent him from escaping. PW1 had provided no proper basis for his assumption that the Accused was associated with the group of 5 that was assaulting him. Therefore, PW1 had wrongly assumed that the Accused was part of the attackers and thus wanted to prevent him from escaping.

328 The Defence pointed out that when asked directly by this Court as to why PW1 thought the Accused was preventing him from running away and whether it was possible that the Accused was actually trying to help him by pulling him away from his attackers, PW1 explained that it was “because my intention was to charge away. But’s really with a great deal of force that I couldn’t do it.”^{[note: 643]}

329 The Defence submitted that PW1’s explanation for why he thought the Accused was preventing him from running away, was because “[his] intention was to charge away” but was unable to do so because the Accused was holding onto him “with a great deal of force”, was unreliable, since it was essentially PW1’s own mistaken assumption about PW1’s intentions. The Defence submitted that PW1 could not have logically or reasonably concluded that the Accused was preventing him from running away just because his own intention was to charge away. The Defence’s reasons in in support of their argument were as follows:

(a) Firstly, PW1 had testified that the Accused had never punched or kicked him^{[note: 644]}. During cross-examination, the Defence had referred PW1 to Exhibit D1(23), which was a screenshot of 03.49.16 from Exhibit P3^{[note: 645]}. PW1 had agreed that he was being punched and kicked by at least two members of the group of 5^{[note: 646]}. PW1 had agreed that if the Accused had wanted to harm him, “the easiest thing for him to do is to join in to punch and kick [him].”^{[note: 647]}

330 The Defence submitted that it was clear from Exhibit D1(23) that the Accused had a clear opportunity to join in the assault on PW1 by hitting him but did not do so. Instead, Exhibit P3 showed the Accused pulling PW1 away at timestamps 03.49.16 to 03.49.21. Hence, the Defence submitted that the fact that the Accused did not hit PW1 when he could reflected the Accused’s state of mind that he had no intention to hurt PW1, and wanted to stop the fight by pulling PW1 away from the fight.

331 The Defence also highlighted that the Accused had consistently maintained this Defence in his statements, Exhibits D7 and D8. In paragraph 3 of Exhibit D8, the Accused had stated that, “I then went forward to stop the fight by grabbing the male Chinese who had hit Brandon. I grabbed him near his rib area with both my arm to pull him away from the fight. I could not do so as he was struggling. I was then punched on my right cheek twice by his female friend. I then pulled her away and shouted at her that I am trying to stop the fight and why was she hitting me.” The Defence also highlighted that Exhibit D4 also corroborated the Accused’s defence, as Exhibit D4 captured him shouting, “I stop fight yet I still got hit” (as transcribed in Exhibit D5).

332 Based on PW1’s own evidence that the Accused had never punched or kicked him, the Defence submitted that there was reasonable doubt generated as to whether the Accused did share in the unlawful assembly’s common object to cause harm to PW1. Accordingly, there was reasonable doubt that the Accused’s motivation for grabbing PW1 was in prosecution of the said common object.

333 Moreover, PW1 had admitted that it was possible that, in that short time when he was being attacked, he could not tell the difference between who was helping him and who was assaulting him, as (a) he admitted to being drunk before the incident; (b) his memory could be impaired because of the alcohol; (c) he was “upset” because he was attacked; and (d) there were a lot of people at the scene^{[note: 648]}:

334 The Defence submitted that PW1’s opinion that the Accused was trying to prevent him from getting away was not reliable. This was because he had clearly admitted that he was intoxicated at the material time of incident, and that it was possible that he could not distinguish between friend and foe in that short time when he was attacked. In any event, the Defence submitted it was this Court’s role, not PW1’s, to come to its own opinion on the Accused’s state of mind from the facts and evidence.

335 Hence, the Defence submitted that PW1 was not clear as to who was his friend or foe at the material time when he was attacked. As such, he had misjudged the Accused’s intentions and made a baseless assumption that the Accused had grabbed him to prevent him from escaping.

336 On PW1’s admission that he was drunk at the material time^{[note: 649]}, PW1 had testified that he consumed 5 glasses (and possibly more)^{[note: 650]} of whiskey, a hard liquor, at a bar called “Rookery”^{[note: 651]}, and a sixth glass at a club called “Bang Bang”^{[note: 652]}, before arriving at Skyline club, where he and his group ordered “2 bottles of hard liquor and a bottle of champagne.”^{[note: 653]}

337 PW1 had admitted that he could not remember how much he drank^{[note: 654]}. The Defence had submitted that PW1 had drunk an amount that was sufficient to make him drunk, as he admitted that he was drunk on the day of the incident

338 Referring to Exhibit P3, the Defence submitted that PW1’s demeanour, as captured at timestamps 03.35.18 to 03.36.36 and 03.48.39 to 03.48.50, showed that he was not sober. In particular, at 03.48.39 to 03.48.50, it appeared that PW1 had difficulty walking upright and steadily.

339 In addition, the Defence submitted that the following inconsistencies in PW1’s testimony corroborated his own admission that he was drunk on the day of the incident, and at the time the assault on him happened:

(a) On the first day of the trial, PW1 had testified that the reason why they went out on the day of the incident was due to a farewell for his boss, Damien Davis^{[note: 655]}. However, the other witnesses, namely PW4 and PW5 testified that the farewell was for PW5 who had just ended her internship at that point in time^{[note: 656]}.

(b) PW1 had testified that before arriving at Skyline club, he and his colleagues had first gone to a bar called “Rookery” for the farewell after work at 6pm^{[note: 657]}, and subsequently to a club called “Bang Bang” around 10pm^{[note: 658]}. However, PW4 and PW5 testified that they had first visited a restaurant to have dinner, before heading to “Alchemist Bar Lab”. Afterwards, they headed to club “Bang Bang” and finally arrived at Skyline club^{[note: 659]}. The Defence submitted that this showed that PW1’s alcohol intake was sufficient to impair his recollection of the events on the day of the incident.

340 While PW2 had testified that he had used PW1’s level of consciousness, as determined by the Glasgow Coma Scale (“GCS”), as an indication that PW1 was not intoxicated^{[note: 660]}, PW2 had also testified that:

(a) The GCS was merely to test the level of a person’s consciousness, and it was by no means a test of whether a person is drunk or a test to determine the level of alcohol content in one’s bloodstream^{[note: 661]}.

(b) PW2 had agreed that “[y]ou can’t use a GCS Score to determine [whether] a person is drunk or not.”^{[note: 662]}

(c) PW2 further testified that the GCS was “definitely not” definitive on the alcohol level in the bloodstream^{[note: 663]}.

(d) PW2 also agreed that if a person was drunk, this would possibly impair his memory retention, perception, and ability to process information^{[note: 664]}. However, the GCS did not determine or gave an indication of impaired memory retention, perception, or ability to process information^{[note: 665]}.

(e) Crucially, PW2 had testified that it was possible for a person to score well on the GCS but still be under alcohol influence, which would impair his memory retention, perception, and ability to process information^{[note: 666]}.

341 In addition, PW2 had agreed that since both PW1 and PW3 were “under alcohol influence with alcohol fetor”^{[note: 667]} when he observed them, there was alcohol in their system. Therefore, it was possible that they would suffer from impaired memory retention and perception of events due to the alcohol in their system.

342 PW2 later testified that it was most likely that PW1’s alcohol level at the time of the assault would have been higher as compared to 5.21am when he observed PW1, as the alcohol would have been metabolised by the liver by the time PW1 was being checked by PW2^{[note: 668]}. These observations pertaining to PW1, according to PW2’s testimony, would apply to PW3 as well^{[note: 669]}.

343 The Defence also highlighted that there was no actual test was carried out to check if PW1 had alcohol in his system^{[note: 670]}.

344 In light of the foregoing, the Defence submitted that the reliability and credibility of PW1’s testimony is compromised by PW1’s drunken state on the day of the incident and at the point when he was assaulted.

345 In addition to his drunken state, given the chaotic and short period of time when he was assaulted by the group of 5^{[note: 671]}, as seen from 03.49.14 to 03.49.19 on Exhibit P3, the Defence submitted that it would be very difficult, if not impossible, for PW1 to correctly tell who at the scene was his friend or foe at the material time when the assault happened. As such, the Defence submitted that this Court should place no weight on PW1’s evidence and his mistaken belief that the Accused had associated himself with the group of 5 and, in prosecution of the common object, grabbed him to prevent him from escaping.

346 On PW1’s admission that Exhibit P3 did not corroborate his perception that the group “were not actively pursuing [him] until the Accused grabbed [him] and [he] fell to ground”, the Defence submitted that PW1’s evidence was not reliable or credible as he was not able to point out which point of Exhibit P3 corresponded to his evidence that the group of 5 was “not actively pursuing him, until the Accused grabbed him.” Eventually, PW1 had admitted that Exhibit P3 showed that the group of 5 were continuously pursuing him^{[note: 672]}.

347 When PW1 tried to explain why Exhibit P3, did not corroborate his evidence that the group was not actively pursuing him until the Accused grabbed him”, he stated that his evidence was “based on [his] own account and [he] felt it’s dishonest if [he] alter it based on the video [he] watched.”^{[note: 673]}

348 The Defence submitted that PW1’s perception that the Accused was grabbing him to prevent him from escaping was mistaken and flawed, because PW1 had admitted that the basis for his perception – that he felt he was able to escape as “the group was not actively pursuing him” until the Accused grabbed him – was not corroborated by Exhibit P3. Furthermore, PW1 had admitted that he “cannot visually confirm whether [he] was pursued or not.”^{[note: 674]}

349 In any event, the Defence submitted that PW1’s explanation for why he felt he was not actively pursued by the group of 5 supported the Accused’s story that he was trying to help pull PW1 away from his attackers. PW1 had explained that he believed he was not actively pursued by his attackers as “the hitting to [his] head stopped” at the point when he “was grabbed by the waist.”^{[note: 675]} The Defence submitted that it was precisely because the Accused had stepped in to help pull PW1 away from the thick of the assault, as seen from 03.49.16 to 03.49.20 on Exhibit P3, that PW1 felt “the hitting to [his] head stopped.”

350 PW1’s apparent confusion about what he perceived on the day of the incident was also evident when he subsequently told the Court that he did not testify during his examination-in-chief that the group was not actively pursuing him until the Accused grabbed him^{[note: 676]}, as “it doesn’t make logical sense”.^{[note: 677]}

351 The Defence pointed out that the Notes of Evidence clearly captured PW1 testifying, during his examination-in-chief, the statement that he later denied making, viz. “the group were not pursuing me. They were not actively pursuing me until the Accused grabbed me and I fell to the ground.”^{[note: 678]} In a later part of his cross-examination, PW1 also agreed that he gave such evidence^{[note: 679]}.

352 The Defence was of the view that PW1’s evidence that he subsequently denied giving was a material part of the Prosecution’s case, as the Prosecution claimed that the Accused was on “standby”^{[note: 680]} and grabbed onto PW1 in order to prevent him from escaping from the group of 5^{[note: 681]}. However, PW1 directly contradicted his evidence, when he subsequently said that he did not make such a key piece of his testimony as “it doesn’t make rational logic.”^{[note: 682]}

353 Hence, the Defence submitted that PW1’s testimony was incoherent, and reasonable doubt has arisen due to the lack of internal consistency in the victim’s own testimony as to what had happened on the day of the incident. The Defence further submitted that PW1 clearly displayed deep-seated antipathy toward Sean, as he had wrongly believed that the Accused was part of the group of 5 that had assaulted him. Hence, the Defence urged me to accord little, if any, weight to PW1’s inconsistent evidence.

354 For completeness, after PW1 denied giving the said evidence during his evidence in-chief, PW1 tried to explain that timestamp 03.49.20 on Exhibit P3 presented “a pretty good opening”^{[note: 683]} for him to run away if only he were not grabbed by the waist.

355 The Defence submitted that in the face of paucity of evidence, the staggering alternative theory about an “opening” advanced by PW1 was unreliable as it was a mere afterthought. Moreover, PW1 did not testify about the “opening” during his examination-in-chief. As such, the Defence urged me to place no weight on this point.

PW3

356 The Defence submitted PW3 was not a reliable or credible witness, for the following three reasons:

(a) PW3’s evidence that the Accused was part of the group of 5 that assaulted PW1 and his role was to “pull PW1 away from [her] so that the group of guys can beat him up”^{[note: 684]} was not reliable, as it was solely her bare assertion that the Accused shared in the group’s common object.

(b) PW3 had agreed that when the assault happened, she was in a state of fear and panic^{[note: 685]}. PW3 had agreed that it would be reasonable for someone in fear and panic to have an impaired perception of what was happening^{[note: 686]}. In addition, PW3 had admitted that she was under alcohol influence^{[note: 687]}, and the situation was “very messy”^{[note: 688]} at the material time.

(c) PW3’s evidence that the Accused shared the group of 5’s common object to cause hurt to her and PW1 was contradicted by her testimony, during examination-in-chief as well as cross-examination that the reason why the Accused grabbed onto her right hand was in self-defence, as he wanted to prevent her from punching him further^{[note: 689]}.

357 On PW3’s mistaken perception that the Accused was part of the attackers, PW3 had testified during examination-in-chief that^{[note: 690]}:

Q:	Are you able to identify any of the persons in the group that had
A:	Yes.
Q:	Are any of these persons present in Court today?
A:	Yes.
Q:	Please point him out to us.
A:	Mmm, he’s there.
Q:	Your Honour, for the record, the witness has pointed to the accused person.
Court:	Yes.
Q:	So, Witness, please note that the person that you have just pointed at, I will refer to him as “the accused”. Okay?
A:	Okay.
Q:	What did the accused do that night?
A:	He was, uh, with this big group of guys and he was trying to pull Roy-Royson away from me so that the group of guys could beat him up.
Q:	Why did he try to pull Royson away from you?
A:	I believe so that the-the guys could beat Roy up.

358 The Defence submitted that the foregoing evidence did not objectively show whether the Accused had associated himself with the group of 5 and shared in the latter’s common object to assault PW1 and PW3. Hence, PW3 was only stating her subjective and mistaken belief that the Accused was part of the attackers. From her evidence-in-chief, PW3 stated clearly that it was only her belief that the reason why the Accused pulled PW1 was “so that the guys could beat PW1 up.”^{[note: 691]}

359 The Defence submitted that PW3’s aforesaid belief was clearly mistaken as PW3 provided no proper basis for her assumption that the Accused was part of the group of 5 and was therefore trying to pull PW1 away to further the group’s common object to cause harm to him:

(a) When it was put to PW3 during cross-examination that the Accused was not part of the group of 5 that had the intention to hurt her and PW1, PW3 disagreed, and the reason was because she “[did not] know them at all.”^{[note: 692]} The Defence submitted that PW3’s reason for disagreeing to the question put to her did not support her view that the Accused was part of the attackers; on the contrary, the fact that she admitted that she did not know anyone showed that there was a very high likelihood that PW3 merely assumed that the Accused’s mere presence at the scene necessarily meant that he was part of the attackers.

(b) PW3 had admitted that the Accused did not punch, kick or assault PW1 at first opportunity^{[note: 693]}, and there was “nothing on [the CCTV footage, Exhibit P3]” that showed the Accused punching or kicking PW1^{[note: 694]}.

(c) PW3 also agreed that if the Accused had wanted to harm PW1 the easiest thing to do was to punch or kick PW1. Ultimately, PW3 admitted that she was not aware of PW1’s intention^{[note: 695]}.

(d) PW3 had also admitted that it was reasonable for the Accused to pull PW1 away from the group of 5 to stop the assault^{[note: 696]}.

(e) PW3 also admitted that the CCTV footage at 03.49.19 to 03.49.22 showed that the assault had stopped for that few seconds when the Accused pulled PW1 away from the Group of 5^{[note: 697]}. The assault only resumed, from 03.49.22 onwards, when Steven was seen rushing towards the Accused and PW1^{[note: 698]}.

360 Based on the foregoing reasons, the Defence submitted that PW3’s evidence that the Accused tried to pull PW1 away so that “the group of guys could beat him up” was unreliable as it was a bare and mistaken assertion on her part. The Defence further submitted that PW3’s mistaken belief was also one that has less to do with facts, and more to do with the bent of what a person is prejudiced to conclude, similarly to that of PW1.

361 As regards to PW3’s admission that she was in a state of confusion, fear and panic at the material time, PW3 had admitted during cross-examination that when the group of 5 started attacking PW1, she panicked^{[note: 699]}. She was also scared and in a state of confusion and wanted to do all she could to protect PW1 from the attackers^{[note: 700]}. PW3 also agreed that it was reasonable for someone in fear and panic to have his or her perception impaired^{[note: 701]}.

362 PW3 also testified that at the point when the group of 5 surrounded PW1 in a circle and continued kicking and punching him (at 03.49.23 to 03.49.30 on Exhibit P3), “that moment is really very messy. And at that point of time, it’s – I don’t know anyone there, so whoever that stopped me, I just throw my punches.”^{[note: 702]}

363 Based on the above, the Defence submitted that reasonable doubt was generated as to whether PW3 did correctly assume that the Accused was part of the group of attackers. This was because it would be unrealistic to expect PW3 to be able to properly differentiate at the material time between who was trying to help her and who was attacking her, given the chaotic situation and her heightened emotional state as the victim of an ongoing group assault.

364 Moreover, PW3 had admitted that she had consumed hard liquor on the day of the incident. Though she could not remember how much she drank, she admitted that it was possible that she “drank quite a lot^{[note: 703]}”. PW3 was examined PW2 at 5.51am, but she admitted that her alcohol influence and alcohol fetor would be comparatively higher at 3.49am, when the assault started^{[note: 704]}.

365 As PW2 had testified that his evidence on the utility of GCS as an indication of the degree of PW1’s alcohol influence would apply to PW3 as well^{[note: 705]}, the Defence reiterated the relevant parts of Dr Loo’s evidence that it was possible for a person to score well on the GCS but still be under the influence of alcohol^{[note: 706]}.

366 Hence, the Defence submitted that PW3’s perception that the Accused was part of the group of 5 who had assaulted PW1 was unreliable and not credible.

367 On PW3’s admission that the Accused had grabbed onto her hand to prevent her from punching him, PW3 had testified during examination-in-chief that the Accused had pulled her out of the group because she punched him in the face a few times^{[note: 707]}. She tried to punch him again, which caused the Accused to push her^{[note: 708]}. PW3 also testified that the Accused “grabbed [her] right hand and placed it on [her] neck.”^{[note: 709]} When asked by the Court why the Accused was holding on to her hand, PW3 replied that it was “because [she]wanted to punch him.”^{[note: 710]}

368 Based on PW3’s evidence, the Defence submitted it was clear that PW3 was trying to punch the Accused. Hence, the Defence submitted that PW3’s aggression towards the Accused had caused him to react in self-defence to protect himself from her punches.

369 PW3 had also testified that the Accused had grabbed her right hand and placed it on her neck because she was trying to punch him^{[note: 711]}. PW3 agreed that the reason why the Accused had held her hand towards her throat area was to prevent her from punching him further^{[note: 712]}.

370 Since PW3 agreed that the Accused had grabbed her hand to prevent her from hitting him, the Defence submitted that the Accused’s right of private defence under Sections 96 and 97 of the Penal Code was applicable, as any force exerted was meant to prevent himself from getting punched by PW3. The Defence submitted that the Accused did not inflict more harm that was reasonably necessary in the circumstances^{[note: 713]}, as PW3 had admitted that had the Accused wanted to retaliate, the easiest and most logical thing for him to have done was to punch or strike her^{[note: 714]}. PW3 also testified that the Accused, at no point, punched, slapped, or hit her^{[note: 715]}.

371 In addition, the Defence also submitted that Section 81 of the Penal Code was applicable as a defence. Section 81 provided that:

81. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done in good faith for the purpose of preventing or avoiding other harm to person or property.

372 The Defence noted that at one point during her examination-in-chief, PW3 had testified that the Accused had grabbed onto her hand to stop her from getting to PW1^{[note: 716]}. The Defence was of the view that her evidence was merely a bare assertion, as she had candidly admitted that she was “not sure”^{[note: 717]} when the Learned DPP asked her why she said the Accused was stopping her from moving towards PW1^{[note: 718]}. In addition, PW3 had clearly testified that she was trying to punch the Accused, and this was what had caused the Accused to react by holding her hand to her throat so she could not attack him^{[note: 719]}.

373 The Defence also submitted that other than showing that the Accused had grabbed hold of PW3 to prevent her from further hitting him, the Prosecution had not tendered any evidence to show that PW3 was assaulted by the group of 5.

374 During PW3’s EIC, she had given her evidence that she had been “throwing punches to them, um to self-protect.” She further explained that “by punching into them they will not attack Roy and [will] get away from him.”^{[note: 720]}

375 PW3 had also expressed her thoughts during Re-Examination that “as long as [she] stay[ed] close to Roy, no one could beat him”. When the Learned DPP enquired on why this was so, PW3 explained that she was of the belief that the group of 5 would not hit women, and further stated that “if they had the intention to hit [her], they would have done so, when [she] stood in front of Roy.”^{[note: 721]}

376 Based on the above, the Defence submitted that it was PW3’s own evidence that she had not been assaulted by the group of 5, as they had not hit her when she used herself as a shield to protect PW1, therefore giving rise to her conclusion that the group of 5 would not hit her.

377 Further, the Defence also submitted that the contemporaneous evidence, Exhibits D4 and D5, corroborated the Accused’s defence in his statements, Exhibits D7 and D8, that he was trying to help PW1 by pulling him away from the attackers, but ended up getting punched by PW3. This caused the Accused to pull her out and shout at her, “I was trying to stop the fight, why are you hitting me?”^{[note: 722]}

378 The Accused had stated in his cautioned statement (Exhibit D7), which was recorded on the day of the incident while he was in remand, that:

“I am not a member of an unlawful assembly. I tried to pull Royson Tan away, but was unsuccessful and got punched in the process by his female friend, after which, I dragged her aside and shouted at her saying: ‘I was trying to stop the fight, why are you hitting me?’ I did not use violence and it was not my intention to cause harm to any parties involved.”

379 In the same vein, the Accused had reiterated in his long statement (Exhibit D8), which was recorded two days after the incident while he was in remand, that:

3. … I grabbed [Royson] near his rib area with both my arm to pull him away from the fight. I could not do it as he was struggling. I was then punched on my right cheek twice by his female friend. I then pulled her away and shouted at her that I was trying to stop the fight and why is she hitting me. My brother Dean also came because he saw me trying to stop the fight. I was very angry with the female and shouted at her and then walk away.

A10) I did not punch or kick anyone. I only tried to pull the victim away and also pulled his female friend away after she hit me.

A13) I would like to state that I am extremely apologetic if I accidentally caused any harm to any person(s) in the course of me trying to stop the fight. I would also like to add that I only pulled the female friend away to shout at her because I was very angry that I got hit when I was trying to be helpful in stopping the fight and I did not understand why she was hitting me…

380 The Defence submitted that PW5’s video and the agreed portion of the transcript of the video (Exhibits D4 and D5) clearly corroborated the Accused’s defence in Exhibits D7 and D8 in that his interaction with PW3 was triggered by his indignation that his good intentions were misunderstood and he ended up getting punched by her. In Exhibit D5, the Accused was “Man 4”^{[note: 723]}, who was videoed shouting twice, “I stop fight yet I still got hit.”

381 The Defence submitted that PW3’s evidence was riddled with unfounded beliefs and assumptions. PW3 was not a credible or reliable witness. The Defence submitted that it was not safe to believe PW3’s oral testimony with regard to the Accused’s intentions, which were provided more than 2 years after the date of the incident, over the Defence’s contemporaneous evidence, Exhibits D4, D5, D7 and D8.

PW4

382 The Defence submitted that PW4 was not a reliable or credible witness during cross examination for the following reasons:

(a) PW4 had admitted that it was possible that the Accused was trying to help PW1 by pulling him away from the group of 5 who was attacking him^{[note: 724]}. Moreover, PW4 had agreed that his conclusion that the Accused was trying to prevent PW1 from escaping just because he had grabbed the Accused from behind was illogical^{[note: 725]}.

(b) PW4 had admitted that from 03.49.18 to 03.49.21 on Exhibit P3, his attention was not in fact directed at the Accused and PW1. As such, he had contradicted his evidence-in-chief by conceding that he could not have seen the Accused holding onto PW1 at the scene^{[note: 726]}.

(c) PW4 had also contradicted his evidence-in-chief when he admitted that he did not see the Accused hitting PW1^{[note: 727]}.

PW5

383 The Defence submitted that PW5 was not a reliable or credible witness for the following reasons:

(a) PW5’s opinion that the Accused’s motivation for holding onto the Accused was to prevent him from running away was a mistaken assumption on her part. PW5 simply assumed that the Accused shared the group of 5’s common object to hurt PW1 just because PW1 was at the scene and stepped in to grab PW1 from behind^{[note: 728]}. Further, PW5 had undermined her evidence-in-chief by admitting during cross-examination that she would not know what the Accused’s intention was when he pulled PW1 away^{[note: 729]}.

(b) During cross-examination, PW5 undermined her evidence-in-chief when she conceded that it is possible that she had incorrectly assumed that the Accused was trying to harm PW1 when he was actually trying to help PW1 by pulling him away from his attackers^{[note: 730]}.

(c) PW5’s explanation during her evidence-in-chief that she disagreed with the Accused’s statement in Exhibit D5 that he had stopped the fight but still got hit was not reliable:

(i) The Defence submitted that the reason for PW5’s disagreement was only an opinion. PW5 had admitted during cross-examination that she was not looking at the Accused when she was filming Exhibit D4^{[note: 731]}. PW5 had also agreed that she had no idea whether the Accused was looking at her when she was looking at her when she was using her phone to record Exhibit D4^{[note: 732]}.

(ii) PW5 also conceded that it was possible that the Accused was not aware that she was filming as he was looking at the commotion going on outside the glass doors of Singapore Land Tower and not at her^{[note: 733]}.

(iii) Therefore, PW5 had no basis to say that the Accused was looking at her at that point when she was filming Exhibit D4^{[note: 734]}.

(iv) Given the above, the Defence submitted that the Prosecution had not adduced any evidence to support its claim that the Accused had “put on a show for PW5’s video recording by saying that [he was] stopping the fight and [he] got hit.^{[note: 735]}”

(v) The Defence also pointed out that the Accused’s evidence was consistent with PW5’s testimony that it was possible that the Accused was looking at the ongoing commotion outside Singapore Land Tower when she was filming Exhibit D4 around 03.49.59 on Exhibit P3.

(vi) During his examination-in-chief, the Accused had testified that:

(A) He did not notice PW5 at all, as she was “a nobody to [him].”^{[note: 736]}

(B) “[T]here was a bigger commotion just happening, you know, right there [outside the glass doors of Singapore Land Tower]” which had captured his focus^{[note: 737]}.

(C) The first time the Accused saw Exhibit D4 was in the police car on 25 March 2017 en route to Cantonment police station, after the police arrested him at his home^{[note: 738]}.

(vii) The Defence submitted that the Accused’s evidence corroborated PW5’s evidence where she had admitted that it was possible that the Accused was unaware that PW5 was taking a video, as he was looking at the on-going commotion and not at PW5 at that point of time^{[note: 739]}.

PW6

384 The Defence had submitted that PW6 was not a reliable and credible witness, for the following reasons:

(a) During cross-examination, PW6 had contradicted his evidence-in-chief when he admitted that the Accused and DW2 were actually not present when Cyrus said that PW1 had threatened to break his neck and told the group at the smoking corner to “teach this guy [Royson] a lesson.”^{[note: 740]} PW6 had admitted that the Accused and Dw2 were at area B on Exhibit D2 while the group of 5 were at area A on Exhibit D2^{[note: 741]}.

(b) PW6 also contradicted his evidence-in-chief when he admitted that he did not see the Accused hit PW1 during cross-examination^{[note: 742]}.

(c) PW6 also contradicted his evidence-in-chief by conceding, as a co-accused, that there was a chance and it “[made] sense”^{[note: 743]} that the Accused was trying to help PW1 by pulling him away from the group of 5 that was assaulting him^{[note: 744]}. This was because PW6 had agreed that the Accused did not “straightaway rush in like us, the 5 of us went – rush in”^{[note: 745]} to attack PW1 when the Accused had a clear opportunity to hit PW1 at 03.49.16 on Exhibit P3^{[note: 746]}. The Defence submitted that PW6’s admission clearly showed that the Accused was not part of the group of 5’s unlawful assembly to hurt PW1 and PW3 and reasonable doubt had been clearly generated as to whether the Accused shared the group of 5’s common object to hurt the victims.

(2) The Prosecution’s case relied heavily on the victims’ opinion on what they observed from Exhibit P3

385 The Defence highlighted that, during the trial, the Prosecution had led a substantial amount of evidence from the victims by showing them short clips of the assault (each lasting a few seconds each) from Exhibit P3, as opposed to focusing on the witnesses’ account of what they actually observed/perceived at the material time.

386 The Defence submitted that the quality of such evidence was unreliable, as the witnesses were giving evidence of their own opinion/speculation of what had transpired on the day of the incident in retrospect, more than 2 1/2 years after the incident. The Defence was of the view that the Prosecution had built its case on the opinions of its witnesses on what they observe in retrospect after watching clips from Exhibit P3. As such, it was unsafe for me to convict the Accused on such evidence.

387 The Defence also submitted that the Prosecution’s case was weak by virtue of the fact that the quality of evidence led from the victims, which focused on what they observed from Exhibit P3, as opposed to what the victims actually saw on the day of the incident, was weak and unreliable. This was because the Prosecution’s witnesses were, in essence, providing their own interpretation/opinion on what was shown in the CCTV footage. The Defence was of the view that such interpretations had less to do with facts, and more to do with the bent of what a person was prejudiced to conclude, especially with regards to PW1 and PW3 who had displayed deep-seated antipathy toward the Accused, as they had wrongly believed that the Accused was part of the group of 5.

388 The Defence also pointed out that a significant portion of PW1’s evidence was led when the Prosecution asked PW1 to describe what had happened to him by playing short clips of the Exhibit P3.

389 The Defence submitted that it was be unsafe for the Court to convict the Accused on evidence led by the Prosecution’s witnesses based on what they observe from short clips of the CCTV footage because such evidence was not factual evidence based on what the witnesses actually saw when the incident unfolded. The Prosecution’s witnesses were giving their subjective interpretation based on what they observed from Exhibit P3. Since the incident happened around 2 1/2 years before the trial, the Defence was of the view that there was considerable risk that such evidence was unreliable as it was given in retrospect.

390 Moreover, the Defence submitted that the victims’ level of perception at the point when the incident happened would be greatly compromised, as they had admitted that they were intoxicated, or at least had alcohol in their blood^{[note: 747]} and were in a heightened emotional state as they were right in the midst of being assaulted^{[note: 748]}.

391 As such, the Defence submitted that it would be illogical and inconceivable for one to expect the victims to remember what exactly transpired at the material time, since the assault had happened quickly and the victims were in a heightened emotional state.

(3) The Prosecution had failed to call the other co-accused persons as its witnesses to testify that Sean was a member of their unlawful assembly

392 The Defence also pointed out that the Prosecution had failed to call the other accused persons to testify at the trial. The Defence pointed out that during the trial, the Prosecution had initially told them that Cyrus, Brandon and Alvin were part of the Prosecution’s witnesses^{[note: 749]}. Furthermore, when asked on 15 November 2019, the Prosecution had refused to give the Defence the order of witnesses^{[note: 750]}. In addition, the Prosecution did not inform the Defence that they were not calling the rest of the witnesses until the second last day of the third tranche, 27 November 2019^{[note: 751]}.

393 To the best of the Defence’s knowledge, the Prosecution had, on 27 November 2019, called for Cyrus, Brandon, Alvin and Steven to attend court at approximately 12pm. Only Cyrus, Brandon and Alvin had turned up on that day. They were made to wait for the trial to end on that day, and were not told of the reason why their presence was required in court. After PW7 had given evidence, the Prosecution informed the Court that they had closed their case and that they will be offering the rest of the witnesses to the Defence. The witnesses, by then were uncooperative and unwilling. As such, it made it almost impossible for the Defence to elicit their cooperation.

394 The Defence also referred me to Nabill where the Court of Appeal held that in a situation where an accused person has advanced a specific defence which identified specific material witnesses and the Prosecution, despite having access to these witnesses, had chosen not to call them, it was obvious that the Prosecution has a duty to call the material witnesses in question to discharge its evidential burden (Nabill at [70] and [71]). If the Prosecution failed to call a material witness, this might justify the court in drawing an adverse inference against them under s 116 illustration (g) of the Evidence Act. (Nabill at [72]).

395 The Court of Appeal further explained at [70] that such “appropriate circumstances” was within the confines of:

“the narrow situation where an accused person has advanced a specific defence which identifies specific material witnesses and the Prosecution, despite having had access to these witnesses, has chosen not to call them.”

396 For clarity, the Court of Appeal explained at [71] that:

“…the Prosecution would not need to call these witnesses if it is satisfied that it can rely on other evidence to discharge its evidential burden, such as, for example, close-circuit television (“CCTV”) records which directly contradict the accused person’s defence. Neither would there be any question of the Prosecution having to discharge it evidential burden by calling these witnesses if the accused’s person’s defence is patently and inherently incredible to begin with. Subject to these obvious limitations, the Prosecution runs a real risk that it will be found to have failed to discharge its evidential burden on material facts in issue if the Defence has adduced evidence that is not inherently incredible and the Prosecution fails to call the relevant material witnesses to rebut that evidence.”

397 The Defence submitted that the Prosecution had failed to discharge its evidential burden in the current proceedings. The Defence was of the view that the evidence relied upon the Prosecution, did not directly contradict the Accused’s defence that he had gotten involved in the fight with the intention to help separate the victims from the attackers. More importantly, the Defence emphasized that spilt second screenshots of Exhibit P3 should be observed in concert with the totality of evidence, and given that the Accused’s consistent evidence corroborated with other contemporaneous evidence, especially Exhibits P3, D4 and the Accused’s own cautioned and long statements (Exhibits D7 and D8), the Defence submitted that the Accused’s defence was not “patently and inherently incredible to begin with ”. The Defence therefore urged me to find that the Prosecution had indeed run the “real risk that it…failed to discharge its evidential burden on material facts in issue if the Defence has adduced evidence that is not inherently incredible and the Prosecution fails to call the relevant material witnesses to rebut that evidence.”

398 The Defence acknowledged that the Prosecution had offered the remaining co-accused(s) to the Defence as witnesses. However, the Defence submitted that the Court of Appeal in Nabill held at [79] that:

“…with a situation where the accused person has made a specific claim and the evidential burden falls on the Prosecution to rebut that claim. That being the case, it is for the Prosecution to call a material witness whose evidence may rebut that claim; the mere fact that the witness has been offered to the Defence or that the Defence can on its own trace the witness to testify does not change the analysis in any way. In such circumstances, if the Prosecution fails to call the witness, it may simply be found to have failed to discharge its evidential burden …”

399 The Defence submitted that the Prosecution had failed to discharge its duty to call the rest of the co-accused persons as its witnesses, namely, Cyrus, Brandon, Alvin and Steven. This was so because it was clear from the Accused’s written statements that were made when he was in remand, that the Accused’s defence was that he and DW2 were not part of the group of 5. The Accused had also stated in Exhibit D8 that he had no intention of joining Cyrus to talk to PW1 and he did not know that the dispute between PW1 and Brandon at Skyline club would become a fight.

400 In this regard, the Defence submitted that reasonable doubt had been raised, as the Prosecution had chosen not to call the other co-accused persons, in particular Cyrus and Brandon, as its witnesses. The Defence submitted that their testimonies would have been able to confirm or contradict the Accused’s defence, as stipulated in his statements.

401 It was clearly incumbent on the Prosecution to call these material witnesses and it was not clear as to why the Prosecution had chosen not to call them at the last minute. As the Court of Appeal emphasized at [77] of Nabill,

“… After all, returning to first principles, the Prosecution is duty-bound to place before the court all relevant material to assist in in its determination of the truth. In our judgment, it would be quite unfair to except the Defence, in place of the Prosecution, to pose to material witnesses questions which may confirm or, conversely, contradict the accused person’s defence in material ways. The accused person might not have the ability or resources to mount a reasonably robust investigation to find out what evidence a material witness might give. Further, as a practical matter, it might be difficult for the Defence to elicit evidence from a material witness if such evidence would necessarily incriminate the witness.”

402 The Defence reiterated that it was the duty of the Prosecution to have called the other co-accused(s), especially Brandon and Cyrus, given their significant roles in the incident. Such a failure to call the material witness was aggravated by the fact that the evidence relied upon by the Prosecution had not contradicted the Accused’s evidence. More importantly, the evidence which further strengthened the Accused’s specific defence in that he had gotten involved with the intention to help separate the victims from the attackers, was not “patently and inherently incredible”.

403 The Defence therefore urged me to find that the Prosecution had indeed failed to discharge itself of its evidential burden of calling material witnesses, especially Brandon and Cyrus, whereby such an evidential burden could not be shifted to the Defence on the basis that the witness statements had been made available to the Defence, and or that the Defence had their own means to trace the witnesses down. This was especially given the delay in disclosing the police-statements made by the other co-accused(s), thereby further highlighting that the Prosecution had indeed failed to fulfil its additional disclosure obligations.

404 The Defence also referred me to the recent judgement of Re Parti Liyani [2020] SGHC 227 where the Honourable Chief Justice Sundaresh Menon (“Menon CJ”) at [39] stated that prosecutors are “ ministers of justice who must always act in the public interest”. Therefore, this “requires a willingness to disclose all relevant material to assist with the court’s determination of the truth, even if it may prove unhelpful or detrimental to the Prosecution’s case”. Menon CJ then, citing Beh Chew Boo v Public Prosecutor [2020] SGCA 98 (“Beh Chew Boo”)^{[note: 752]}, elaborated that the prosecution’s duty to act in the public interest is “an ongoing one” and “might even extend to calling a hostile witness, where this is relevant to establishing the truth of the matter”.

405 Taking the above into consideration, the Defence submitted that that the failure to call material witnesses would be tantamount to not putting forth relevant evidence in Court.

(4) The Prosecution had failed to clearly define at which point the Accused shared in the common object to cause hurt to PW1 and PW3

406 The Defence had submitted that the Prosecution had failed to clearly define at which point it was claiming that the Accused shared in the unlawful assembly’s common object to cause hurt to PW1 and PW3.

407 In this regard, the evidence from the Prosecution’s witnesses seemed to run in two completely opposite directions as to when the common object to cause hurt to the victims was conceived. On the one hand, PW1’s evidence was that the assault transpired because he had earlier an altercation with Brandon at Skyline. On the other hand, PW6 had testified that the reason why he and his group attacked PW1 was because Cyrus told them at the smoking corner that PW1 had threatened to break his neck, and he told them, “Let’s go teach him a lesson.”

408 As such, the Defence submitted that the Prosecution’s case lacked clarity as the Prosecution had failed to pin-point the point at which it had alleged that PW1 shared the unlawful assembly’s common object to cause hurt to the victims. According to PW6’s evidence, it appeared that PW1’s incident with Brandon at Skyline club had nothing to do with the group of 5’s common object to hurt PW1 and PW3. This was because PW6 had testified that the group of 5 had assaulted PW1 because Cyrus and PW1 had an argument and PW1 had threatened to break Cyrus’s neck.

409 The Defence submitted that the point at which the Prosecution was claiming the Accused to have shared in the unlawful assembly’s common object was an important facet of the Prosecution’s case against the Accused. This was because it would affect the way the Prosecution led evidence at trial to prove its case and more crucially, it would affect the content of the Accused’s defence.

410 As stated by the Honourable the Chief Justice in Mui Jia Jun v Public Prosecutor [2018] SGCA 69 at [1], “It is a fundamental principle of our criminal law that an accused person should know with certainty, and thus have a full opportunity to meet, the case advanced against him by the Prosecution.”

411 The Defence submitted that the Prosecution’s failure to put its case clearly and transparently to the Accused on when it was alleging the Accused had shared in the group of 5’s common object to cause hurt to PW1 and PW3 was an inherent and irreparable weakness in the Prosecution’s case, which clearly generated reasonable doubt.

The Prosecution’s strategy

412 Apart from failing to put its case clearly to the Accused, the Defence also submitted that the Prosecution had not been transparent and forthcoming with the Defence on how it planned to run its case at trial. While the Defence agreed that the Prosecution did enjoy prosecutorial discretion, the Defence submitted that it should not be exercised in a way that prejudiced the accused person and undermined the Defence’s ability to fully meet the case advanced against him by the Prosecution, as reiterated by the Chief Justice in Mui Jia Jun.

(1) Last Minute Changes to Witnesses

413 In this regard, the Defence was of the view that they were taken by surprise when the Prosecution stated at the end of the second last day of the third tranche on 27 November 2019, that it was planning to call PW7 as its last witness and offered the remaining witnesses on its list to the Defence. The Prosecution did not give the Defence any notice on the foregoing, even though the Defence had expressly requested the Prosecution on 15 November 2019 to at least give the Defence the order of its witnesses as it would help with the Defence’s preparation. The Defence was of the view that the Prosecution’s last-minute change in witnesses, was unfair to the Defence, as it did not give the Defence sufficient time to prepare its case.

(2) Late Disclosure of PW5’s Video (Exhibit D4)

414 The Defence also pointed out that it was only on the first day of the trial that the Prosecution had disclosed PW5’s video (Exhibit D4) to the Defence. It was clear that Exhibit D4 was a material piece of objective and contemporaneous evidence, as it clearly supported the Accused’s defence that he was trying to stop the fight by helping to pull PW1 away from his attackers. The Accused’s defence was clearly stated in his cautioned and long statements (Exhibits D7 and D8) made while he was in remand, in which he consistently stated that he was trying to stop the fight by trying to pull PW1 away from his attackers.

415 The Defence felt that Exhibit D4 should have been disclosed earlier before the commencement of the trial in order for them to peruse the evidence at an earlier stage and taken the appropriate steps to prepare their case before the trial.

416 The Defence therefore submitted that, by delaying the disclosure of Exhibit D4, which was clearly relevant to the Accused’s innocence, the Prosecution had breached its overarching duty of fairness, which obligated the Prosecution to disclose relevant material that could assist the court in its determination of the truth. The Defence also noted the recent observations laid down by the Court of Appeal in Wee Teong Boo v Public Prosecutor [2020] SGCA 56 (“Wee Teong Boo”) at [126] and [127], as follows:

“General duty of the Prosecution

The Prosecution’s disclosure obligations

126. Before concluding this judgment, we take this opportunity to reiterate the Prosecution’s overarching duty of fairness. The Prosecution owes a duty to the court and the public to ensure that only the guilty are convicted. Arising from this, the Prosecution is obliged to disclose relevant material that can assist the court in its determination of the truth. This extends to disclosure of certain documentary evidence (Kadar [51] supra) at [113]):

… [T]he Prosecution must disclose to the Defence material which takes the form of:

(a) Any unused material that is likely to be admissible and that might reasonably by regarded as credible and relevant to the guilt or innocence of [the accused]; and

(b) Any unused material that is likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that is likely admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of [the accused].

This will include material which is neutral or adverse to [the accused] – it only includes material that tends to undermine the Prosecution’s case or strengthen the Defence’s case. …

127. Under Kadar, the Prosecution remains entitled to internally assess and evaluate the unused material in its possession before disclosing it to the Defence or the court (Soh Guan Cheow Anthony v Public Prosecutor and 126 another appeal [2017] 3 SLR 147 at [98]). Generally, all disclosable materials should be given to the Defence before the beginning of the trial (Kadar at [113] and [121]).”

(Emphasis added)

417 In applying the foregoing observations on the Prosecution’s disclosure obligations, the Defence submitted that PW5’s video fell squarely within the Prosecution’s Kadar disclosure obligations, as it was material that was likely to be inadmissible and was relevant to the Accused’s innocence. As the Court of Appeal had reiterated in Wee Teong Boo, all disclosable materials should be given to the Defence before the beginning of the trial.

418 By delaying the disclosure of PW5’s video till the first day of the trial (13 May 2019), the Prosecution’s explanation was that it was only “recently surfaced to [the Prosecution].”

419 However, the Defence pointed out that the Prosecution’s explanation did not mirror the Accused’s evidence, where he had testified during examination-in-chief that he was first shown Exhibit D4, on the very morning of the incident (25 March) in the police car, after the police had arrested him at his home, and were bringing him to Cantonment police Station. The Accused had testified that the police officer showed him Exhibit D4 “without sound” – the officer only “fast forward the video until, uh, there was a picture of [his] face that [came] onto the screen and then he paused it there and asked if that was [Sean].”

420 As such, it would appear that the Prosecution had access to Exhibit D4 on the very day of the incident, since the police officers who had arrested the Accused had shown the video to him (albeit by only fast-forwarding it without sound) when he was arrested on that morning.

421 In this regard, the Defence submitted that the Prosecution had not complied with its disclosure obligations by belatedly disclosing Exhibit D4 to the Defence only on the first day of the trial. As the Court of Appeal had noted in Wee Teong Boo at [132], “these disclosure obligations are there to ensure that the Defence is apprised of all the relevant information before the trial such that it may develop a defence strategy that will be best suited to assist the court in arriving at the truth.”

422 The Defence submitted that Exhibit D4 was strong corroborative evidence of the Accused’s defence, as stated consistently in his cautioned and long statements (Exhibits D7 and D8), where he had clearly stated that he was trying to stop the fight by stepping in to grab PW1 to pull him away from the fight. However, he ended being punched twice on his right cheek by PW3, which caused him to pull her away and he shouted at her angrily that he was trying to stop the fight and asked why she was hitting him. It was not disputed that Exhibit D4, was contemporaneous evidence as it was taken at the scene, and it also captured the Accused shouting angrily “I stop fight yet I still got hit.”

(3) Late Disclosure of the Police Statements Made by the Other Co Accused(s)

423 The Defence also pointed out that it was only on 24 August 2020, just two days before the eighteenth day of the trial, that the Prosecution had disclosed police statements made by the other co-accused(s) to the Defence. It was clear that the police statements made by the other co-accused(s) were material pieces of objective and contemporaneous evidence, as they largely support the Accused’s defence that he did not know that fight was going to occur, and that he had gotten involved in the hopes of separating the victims and the attackers. The Defence reiterated that the Accused’s defence was clearly stated in his cautioned and long statements (Exhibits D7 and D8) made while he was in remand, in which he had consistently stated that he was trying to stop the fight by trying to pull PW1 away from his attackers.

424 The Defence submitted that the police statements made by the other co accused(s) also fell squarely within the Prosecution’s Kadar disclosure obligations, as it was material and was likely to be inadmissible and was relevant to the innocence of the Accused.

425 The Court of Appeal had reiterated in Wee Teong Boo that all disclosable materials should be given to the Defence before the beginning of the trial. By delaying the disclosure of the police statements made by the other co accused(s) till two days before the eighteenth day of the trial (26 August 2020), the Prosecution’s only explanation was that they were only acting “in the discharge of the Prosecution’s disclosure obligations per Nabill”. The Defence noted that while the affirming decision of Nabill was recently decided on 31 March 2020, however they submitted that that the Prosecution had still belatedly disclosed the police statements made by the other co accused(s) to the Defence just 2 days before the eighteenth day of the trial. In light of the foregoing, the Defence reiterated that the Prosecution had not complied with its disclosure obligations.

426 The Defence submitted that in Nabill, the Court of Appeal had clearly differentiated the Kadar obligations and the additional disclosure obligations in relation to a material witness’s statement, at [41]:

“(a) The first difference is that where the additional disclosure obligations are concerned, it does not matter whether the statement in question is: (a) favourable (and so triggers the Kadar obligations); (b) neutral; or (c) adverse to the accused person. If appropriate, and if there are valid reasons, the Prosecution can apply to the court for the redaction of those portions of the statement that have nothing to do with the accused person’s defence, relevance to the defence being the factor that renders the statement a material statement in the first place.

(b) The second difference is that the additional disclosure obligations do not require the Prosecution to carry out a prior assessment of whether a material witness’s statement is prima facie credible and relevant to the guilt or innocence of the accused person. Such an assessment is required for material that is disclosed pursuant to the Prosecution’s Kadar obligations because we were concerned in Kadar to reasonably limit the amount of unused material that the Prosecution would have to disclose. This concern does not arise in relation to the statements of material witnesses because the number of such statements would not be onerous on the Prosecution in most cases, and hence, there would be no need for the Prosecution to undertake any wide-ranging review or assessment of prima facie credibility and relevance before disclosing such statements.” (Emphasis added)

427 The Court of Appeal went on to explain at [44] – [48], the basis for the Prosecution’s additional disclose obligations. At [45], the Court of Appeal held that with regards to the significance of access to all relevant information by the accused:

“…as also accepted by the Prosecution, an accused person ought to have access to all relevant information in order to make an informed choice in deciding whether or not to call a material witness…the Defence…is at a distinct disadvantage in deciding whether or not to do so when it is not aware of what the witness has previously said in the course of the investigations into the offence alleged against the accused person (see Harven a/l Segar v Public Prosecutor [2017] 1 SLR 771 at [70])…the practical difficulties of eliciting self-incriminating evidence from a material witness might by insurmountable…” .

428 In this regard, the Defence submitted that the strategic delay in the disclosure of the police statements made by the other co-accused(s) not only reflected the Prosecution’s relative failure to fulfil its additional disclosure obligations, thereby limiting the information the Accused had prior to, and during the proceedings. Additionally, it reflected misconduct by the Prosecution.

429 The Defence submitted that the potential consequences of the failure by the Prosecution in its duty to disclosure was most recently reiterated in the decision of Lim Hong Liang v Public Prosecutor [2020] SGHC 175 (“Lim Hong Liang”), where it was explained at [24] that one such potential consequence was “rendering the conviction unsafe because of misconduct” :

“The first potential consequence of non-disclosure is a finding that there has been non-disclosure of such a degree that the conviction is rendered unsafe. In presenting its case, the Defence may rely on the circumstances surrounding the non-disclosure to indicate misconduct or suppression such as to cast doubt on the integrity of the prosecution process and on the evidence presented below which led to the challenged conviction. On this approach, the question of the admissibility of the undisclosed evidence does not always need to come into play. Specifically:

a. If the Defence is relying on inferences from the undisclosed evidence to show that the offence was not committed by the Accused, that would be relying on the undisclosed evidence as evidence as to the commission of the offence, and admissibility must be made out.

b. But if the Defence is not relying on such inferences from the undisclosed evidence, and only instead on the mere fact that it was undisclosed, to show an error or misconduct by the Prosecution, then the inadmissibility or otherwise of that piece of undisclosed evidence is not material and need not be addressed.”

430 The High Court in Lim Hong Liang further explained at [30], on the Prosecution’s duty to disclosure in that:

“It must be reiterated that if there is any doubt about the potential relevance or impact of material, it should be disclosed; this has been consistently made clear by the Courts in, inter alia, Kadar, Nabill, and Wee Teong Boo. There may be various reasons why a statement is held back, some of which may be thought to go to legitimate litigation strategy. But, as was masked in Kadar at [109], prosecutors are ministers of justice, meaning that wider considerations are paramount even at the expense of obtaining a conviction. Litigation strategy must give way to those considerations. It would not in my view be appropriate to hold back the disclosure of a statement just so as to use it as a check on the oral testimony of the putative witness, with a view to either impeachment under s 147(5) of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) or admission of the contents under s 147(3) of the said Act. Such a motivation potentially infects the proper assessment and discharge of the duty stipulated by Kadar, which embodies the highest obligations owed by prosecutors: the fair conduct of prosecutions without a view to conviction by any means.”

431 For the present case, the Defence submitted that they were not seeking to rely on the police statements made by the other co-accused(s), and were only seeking to highlight the fact that the Prosecution had belatedly fulfilled its duty to disclosure.

432 Furthermore, in a news article published on 28th October 2020, it was stated that the Honourable Justice Aedit Abdullah had ruled in August that although the statement by the accused’s nephew, Edwin, could not be used as evidence (unless admitted), the statements could be used to convince the court “if the prosecution’s failure to disclose it should render the conviction unsafe, or if an adverse inference should be drawn against the prosecution.”

433 In this regard, it was stated that the three main potential consequences of prosecution’s non-disclosure of statements were:

(a) It rendered the conviction unsafe due to misconduct;

(b) The prosecution’s case was not made out beyond a reasonable doubt; and

(c) An adverse inference could be drawn.

434 The Defence highlighted that, if the statements had been disclosed earlier, the information contained therein could have been used during the cross examination of the other witnesses. From these, the Defence submitted that the Prosecution’s belated disclosure of the police statements made by the other co accused(s) had prejudiced the Defence.

(4) DW2’s Testimony

435 The Defence noted that the Prosecution’s position was that DW2 lacked credibility. The Prosecution had sought to portray DW2 to be motivated by his close relationship with the Accused, and that the Accused’s intention had been “so obvious” that DW2 had joined in.

436 The Defence submitted that the Prosecution’s position was ungrounded for the following reasons:

(1) Consistency

437 The Defence submitted that DW2 had been highly consistent witness. Despite the Prosecution repeatedly putting it to DW2 that he had prior knowledge about the fight and that “it was not a coincidence” that he and the Accused had chanced upon the fight, DW2 remained calm and consistently answered that he and the Accused had been making their way to the taxi stand, as they intended to return home.

438 With regards to DW2’s involvement, the Prosecution had also alleged that DW2 had prior knowledge about the fight, and or that he joined in because Sean’s intention to help the group of 5 had been “so obvious”. DW2 however maintained that he did not know the fight was going to happen, and that he had acted upon his own judgment that his brother was struggling to help the victims from the attackers^{[note: 753]}.

439 When pressed further, DW2 was also consistent in his explanation that he could understand his brother’s intention without any communication, because of his understanding of his brother^{[note: 754]}.

440 The Defence also submitted that despite the Prosecution’s feeble attempts to assert that DW2 had told Alvin that he was with the group in attacking the victims when he held out his palms upright, DW2 was calm and consistent in explaining that he had been telling Alvin to calm down and stop fighting. DW2 further added that, unlike the Prosecution’s assertion that Alvin act of “leaving (Dean) alone” was with the knowledge that DW2 was part of the group attacking the victims, there is “no reason for him to continue, uh---trying to attack a person who is--- who has his, um, palms out to him, telling him to ‘calm down and relax’.”^{[note: 755]}

441 The Defence further submitted in the highly unlikely event that DW2 had told Alvin that he was part of the group, making the Prosecution’s assertion true, Exhibit P3 clearly showed that at timestamp 3:49:32, Alvin had pushed DW2 following Dean’s gesturing, and had rushed back to attack PW1. From Alvin’s aggressive behaviour towards DW2, the Defence submitted that on the balance of probabilities, it was more likely that Alvin had not heard what he wanted to hear from DW2, and hence he reacted with hostility. This would thus mean that DW2’s version of events (i.e. telling Alvin to calm down and stop fighting) was more likely to be the case since, Alvin was still caught in the heat of the moment.

442 In view of the above, the Defence submitted that DW2 was a credible and consistent witness.

(2) Honesty

443 The Prosecution had submitted that DW2’s close relationship with the Accused was his motivation for testifying favourably for the Accused who was his brother. Candidly, DW2 had admitted that as a family member, he had hoped that the Accused would be exonerated. However, DW2 consistently maintained that he was here to speak the truth to the court^{[note: 756]}.

444 DW2 had given further evidence that he had acted out of his own judgement (i.e. that the Accused needed help to pull PW1 away), and not because of any communication with the Accused during the incident or because it was “so obvious” that the Accused had wanted to restrain PW1, as purported by the Prosecution^{[note: 757]}.

445 The Defence also pointed out that DW2 could not be part of the group of 5 as he was beaten up by the group of 5 when they were attacking PW1.

446 The Defence also submitted the objective and contemporaneous evidence also showed that DW2 was a candid and honest witness throughout the trial:

Issue	What DW2 said in cross-examination
1) DW2 and the Accused had watched the fight, such that it did not appear like they were planning to return home	Q. Now, it certainly did not seem like you and your brother were going off to take a taxi, right? Agree or disagree? A. Agree.
2) DW2 might have “used too much force” in grabbing PW3 by the neck.	Q. That footage also shows that Yuan Yuan struggled and you tugged her so hard from behind by the neck 2 times before throwing Yuan Yuan onto the ground, right? A. Yes, the video---yes. Q. Well the video--- A. Her--- Q. captures what happened in reality. A. Yah. If I had to---I---I---I would just like to say that if I had to use so much strength to pull Yuan Yuan away from my brother, doesn’t that mean that Yuan Yuan was also holding---it---Yuan Yuan was also fighting and holding against--- holding on to Sean very tightly so that I will have to use that amount of force? Tan: Your Honour, I leave this point for submissions on this witness. A. I mean, yes, I agree. I---I do agree that, you know, I’m might have used a bit too much force which resulted in, you know, flipping and--- falling to the ground, but if I had to tug---I mean, if she wasn’t you know, if she wasn’t holding on to Sean, why would I have to tug her twice? I could have just pulled her away and she would have been, you know, with Mr. X helping and everything, it would have been very easy to separate the 2 of them if --if---if Yuan Yuan wasn’t---wasn’t trying to resist.
3) DW2 could not remember because 3 years have since past, and his memory in relation to the event had since become muddled.	Tan: My---my question, Your Honour, was, during this time that they wen off-screen, the group of five punched and kicked Royson, right? A. Yes. I mean--- Q. And during this time, Yuan Yuan was trying to defend Royson, right? A. I don’t know. Q. Why wouldn’t you know? You were right there at are C watching them. A, It’s---it’s been---it’s been 3--- almost 3 years. It’s kind of, uh, not very sure like what exactly went down but--- I mean, if Yuan Yuan was with Royson, as I suppose, she-- -she would be trying to defend him, I guess.

Why should the Accused be believed

(1) Consistency

447 The Defence submitted that the Accused’s version of events was consistent from the start of his involvement in investigation for the present case. There were material areas of consistency between the Accused’s police statements taken on 27 March 2017 (Exhibit D8) while he was in remand and his evidence in court:

S/No	Area: His relationship with the members of the group of 5	Exhibit D8	The Accused’s testimony during cross-examination
1.	Brandon	Q2) Can you tell me more about Brandon? A2) I got to know him in December 2016 when I started working with a company by the name of ‘Insurgence’. The company was running a few club and one of them is ‘Skyline’. We are just normal friends and we do not go out together beyond the fields of work. Brandon was also working as a Promotor like me. He was working on the day of the incident.	Q: Right. Your evidence is that before 25th March 2017, you knew Brandon for 4 months, right? A: Yes, that’s right. Q: On 25th March 2017, Brandon was working as a promoter, right? A: Yes, that’s right. Q: And what was at Skyline, correct? A: Yes. Q: Okay. Now, is it your evidence that Brandon and you were colleagues working as promoters in nightlife before 25th March 2017? A: Yes. While I was working in Skyline for the month of December in 2016. Q: Both of you were good friends at that time, right? A: We were acquaintances, ex-colleagues. I wouldn’t call us “friends”. Because we don’t even hang out outside of work[note: 758].
2.	Cyrus	Q3) Can you tell me more about Cyrus? A3) We have been acquaintance for about 3 to 4 years and he is also working as a Promoter.	Q: Alright. Now, in relation to Cyrus, your evidence is that before 25th March 2017, you knew him for 3 to 4 years, correct? A: Yah, yes.[note: 759]
3.	Nelson	Q4) Can you tell me more about Nelson? A4) “I got to know him in December 2016 when I was working as a Promoter in ‘Skyline’…”	Q: In relation to Nelson, your evidence is that before 25th March 2017, you knew him for 4 months, right? A: Yes[note: 760]
4.	Steven	Q6) Do you know any other person involved in the fight? A6) I only know Brandon, Cyrus and Nelson. Me and my brother Dean came to stop the fight.	Q: Now, is it your evidence that you had only met Steven for the first time on 25th March 2017? A: Yes. That is right.[note: 761]
5.	Alvin	Q6) Do you know any other person involved in the fight? A6) I only know Brandon, Cyrus and Nelson. Me and my brother Dean came to stop the fight.” Q8) I am showing you photographs of eight person labelled P1 to P8, can you tell me more about them? A8) P1 is Cyrus, P2 is Brandon, P3 is me, P4 is Nelson and P6 is my brother. I do not know who P5 is [Alvin Raj]. P7 is the male victim and P8 is his female friend	Q: Now, in relation to Alvin, is it also your evidence that you had only met Alvin for the first time on 25th March 2017? A: Yes. Q: And when you were in Skyline on that day, did you see Alvin together with Brandon, Cyrus, Nelson – Sorry, hold on, and Steven? A: No. Q: Did you see Alvin in Skyline? A: I don’t recall.[note: 762]

S/No	Area: Incident between PW1 and Brandon at Skyline	Exhibit D8	The Accused’s testimony during cross-examination
6.		“Brandon pointed to a male Chinese wearing light colored shirt as the one who head butt him and the guy was talking to the club manager ‘Mano’. Then ‘Mano’ came over to talk to Brandon and by then I was not with them and did not know what they are talking about. I saw Brandon and ‘Mano’ pushing each other and was stopped by the other bouncer. I did not intervene.”	Q: Your evidence is that Brandon then pointed at Royson and told you that Royson had bumped into him, isn’t it? A: Yes. Q: Your evidence is then that you continued smoking while Brandon and Manu shouted at each other, quarrelling, right? A: Yes. Q: And your evidence is that you did not take note what they were quarrelling about because you were using your handphone, right?[note: 763]

S/No	Area: Leaving Skyline club	Exhibit D8	The Accused’s testimony during cross-examination
7.		“At about 3.30am, I wanted to leave the club and went to look for my brother Dean at ‘Empire’ but he had not finish his drinks yet. I took the lift down to wait for my brother and met Nelson in the lift”	Q: Now, you then left Skyline club and exited Singapore Land Tower at about 3:30am, isn’t it? A: Yes. Q: You took the lift down to the ground floor with Nelson right? A: Yes. [note: 764]

S/No	Area: During the fight	Exhibit D8	The Accused’s testimony during examination-in-chief
8.		“Q9) Can you explain what did you do in the fight? A9) As I had said, I and my brother are involved at all in the initiation of the fight. I only try to intervene and stop the fight when it got violent. My intention was to pull the victim away from his attacker because it is easier for me to pull one person away rather than trying to go head on with his attackers. My brother also followed me stop the fight. He was not even at Skyline and does not know what happened between Brandon and the victim.”	Q: Paused at 3:49:16. Can you see yourself in this screenshot? A: Yes, I can, Your Honour. Q: Now, what were you doing? A: Your Honour, I was actually reaching in to help pull the victim away – to help pull Royson away from, uh, the attackers – from the group of attackers. Q: Why did you do that? A: Uh, Your Honour, I – my first instinct was to separate him. Because he – it looks like he was getting roughed up quite badly. So, I just wanted to separate him, uh, from the people who were hitting him. Q: Now, at this point, it happened, uh, in just a few seconds and I panicked and just – the first thing that came to my mind was just to stop the fight, to separate them.[note: 765]

448 The Defence also submitted that the Accused’s evidence as set out in the tables above was consistent with Exhibit P3. Both the Accused and DW2 were not involved in the fight from timestamp 03:48:57 to 03:49:16, even though they could be seen to be observing the fight from the background from timestamp 03:49:05 onwards. DW2 had stepped in to help to pull PW1 out at timestamp 03:49:20 after the Accused had begun to pull PW1 out at timestamp 03:49:17.

(2) Honesty

449 The Defence submitted that the Accused was an honest witness. He had not attempted to fabricate any evidence and had answered truthfully even when he was aware that the truth did not favour his case. In his cross-examination, he admitted that grabbing PW1 would have prevented him from turning around and running away^{[note: 766]}. The Accused also did not make any attempt to hide his relationship with the members of the group of 5, and he had admitted during his cross-examination that he was friends and on good terms with Brandon on the day of the material incident^{[note: 767]}.

450 The Defence also submitted that the Accused had withstood rigorous cross-examination on the witness stand and despite all forms of allegations put to him by the Prosecution, he had remained relatively calm and stood his ground.

(3) Exhibit D4

451 The Defence submitted that Exhibit D4 was another piece of contemporaneous evidence in the present case, which supported the Accused’s defence that he was trying to stop the fight by pulling PW1 away from the attackers, but ended up getting punched by PW3 instead. Exhibit D4 was recorded in the immediate aftermath of the fight which occurred from timestamp 03:49:00 to 03:49:50 of Exhibit P3. 290. From timestamp 0:15 to 0:24 in Exhibit D4, the Accused had clearly expressed his frustration after getting hit by PW3 during the fight. The transcription of the audio in the aforesaid timeframe in Exhibit D5 provided as follows:

Man 2:	Who protect you now? Who protect you now?
Unidentified:	Okay, chill, chill…
Man 2:	Chill what? Who protect you now?
Man 3:	I know I [inaudible]
Man 4:	… I stop fight yet I still got hit… [Expletives]…
Man 5:	Hey… [inaudible]
Man 4:	I stop fight I got hit
Unidentified:	Who? Who was the one that hit you

452 The Defence also pointed out that the Accused had consistently maintained the same position in Exhibit D7 (his cautioned statement given on the same day of the incident, 25 March 2017), Exhibit D8 (his long statement given on 27 March 2017) and his examination in chief in court.

453 The Defence submitted that the reason for the aforesaid material consistencies in the Accused’s defence was that the Accused had been completely candid and honest with regards to the incident. His version of events was consistent with his actions and emotions during the incident on the early morning of 25 March 2017, to the statement he gave to the police on 27 March 2017 while in remand, to his testimony in court. As such, the Defence urged me to accept the Accused’s evidence.

454 The Defence submitted that there were other aspects of the present case that further support the veracity of the Accused’s account of events.

(4) The Accused’s experience in breaking up fights

455 During his examination-in-chief, the Accused had testified that he had worked in nightclubs for many years prior to the fight in the present case and was involved in breaking up fights that started in those clubs. The Accused’s instinctive reaction to step in and separate PW1 from his attackers by pulling him away, especially since PW1 was getting assaulted “right in front of [him]”, was consistent with training that the Accused had received while working at nightclubs, as fights would break out in a nightclub’s premises at occur close-quarters.

456 At the material time of the fight, the Accused had a significant amount of experience in breaking up fights and it was not in his nature to do nothing while a fight broke out and simply watch it escalate. It was instinctive for him to break up the fight and prevent bodily injury and property damage, as he previously did in the course of his employment in nightclubs. Further, the Accused had testified in relation to a question asked by the court during his re-examination, that he had intervened in the fight in the present case as he did not find the fight to be serious and he had “seen worse fights than [that]”.

457 The Accused had intervened and attempted to break up the fight because he had acted on his instinct to help someone who was being hit right in front of him, and there were no weapons used by the attackers. From his perspective, the fight could have been stopped. Thus, the Defence submitted that it was not inherently incredible for him to have utilised his experience in breaking up fights to intervene and help PW1 in the present case.

(5) No intention to cause hurt, did not cause hurt

458 The Defence noted that it was the Prosecution’s case that the Accused had restrained PW1 to prevent him from escaping and to allow the group of 5 to continue beating him up.

459 The Defence submitted that the Accused did not have the intention to cause hurt to PW1 or PW3. PW1 had confirmed during his cross-examination that the Accused had not punch or kicked him at any point^{[note: 768]}. PW3 had also confirmed during her cross-examination that the Accused had only held on to her hand to defend himself from her punches and had not hit her at any point^{[note: 769]}.

460 If the Accused had indeed wished to harm PW1 or PW3, he would have had many opportunities to hit them, but chose not to do so as he had no such intention. The Accused had an opening to attack PW1 at timestamp 03:49:16 of Exhibit P3. He was behind PW1, who was being attacked in multiple directions. Further, the Accused had various opportunities to do so after he had grabbed PW1 from timestamp 03:49:17 to 03:49:22. Instead, he did his best to create distance between PW1 and the group of 5 by pulling PW1 away from the middle of the fight.

461 The Accused himself had also pointed out during his cross-examination that if his intentions in pulling PW1 out from the fight was to restrain PW1 and prevent him from running away, he could have just held PW1on the spot for the group of the 5 to hit him^{[note: 770]}.

(6) The Accused was not angry until he was hit

462 The Defence submitted that the Accused did not step into the fight in an angry or emotionally charged state. The Accused had testified during his examination-in-chief and during cross-examination that he was panicking internally^{[note: 771]}. Hence, he was unable to portray the same emotion in Exhibit P3. The Accused was not angry with PW1 and did not wish to hurt him. The same could not be said about the group of 5. Their actions captured in Exhibit P3 betrayed their desire for violence and revenge. They were furious with PW1.

463 The Defence submitted that there was a stark difference between the behaviour of the group of 5 and the Accused’s behaviour. The Accused was not angry or vindictive. While he had testified that he was panicking internally, his purportedly calm exterior showed that his experience in breaking up fights was kicking in. He was steadying himself to step into the fight to help PW1.

464 However, it was apparent that the Accused’s calm demeanour had changed at the end of the fight when he was captured in timestamps 0.15 to 0.24 of Exhibit D4. The Accused was angry and frustrated, complaining that he got hit when he was trying to stop the fight.

465 Referring to Exhibit P3, PW3 could be seen hitting the Accused from timestamp 03:49:31 to 03:49:34. It was not disputed that she had hit him. The Defence submitted that the reason for the Accused’s anger or frustration which was captured in Exhibit D4 was because he had made a genuine attempt to stop the fight by pulling PW1 out of the fight, but he had been assaulted by PW3 for his efforts. In Exhibits D7 and D8, the Accused consistently reiterated that he was angry because he got punched by PW1’s female friend in the process of trying to help PW1.

466 The Defence noted that the Prosecution had put it to the Accused that he was aware that he was being filmed in Exhibit D4, and he had put on an act because he knew that PW5 had intended to send Exhibit D4 to the police. The Accused had in his cross-examination said that his intention was not to put on a show for the camera but he was just angry and he was expressing what was going through his mind at that point of time^{[note: 772]}.

467 The Defence submitted that the Accused had no reason to notice PW5 filming him, given his anger and frustration in that moment. Moreover, PW5 was a “nobody to [him]”, and he had not noticed PW5 filming and his attention was on the “bigger commotion just happening, you know, right there [at the glass doors of Singapore Land Tower].”^{[note: 773]}

468 The Defence also pointed out that at timestamp 03:50:04 in Exhibit P3, when Alvin Raj was pushing PW5’s handphone away, motioning to her and shouting at her to stop filming, Exhibit P3 clearly showed the Accused walking away from the area. Therefore, although PW5 had confirmed that the Accused might have heard what Alvin had shouted at her as he was very close to her, the Accused was fuming at that point as he had been attacked by PW3 despite his efforts in trying to stop the fight. He had returned to the scene as he was angry and felt an unexplainable urge to express himself, which was why he returned to the scene angrily and decided to give everyone a piece of his mind. The Defence submitted that in his anger and unhappiness, the Accused did not notice PW5 at all.

469 The Defence submitted that for the Prosecution’s allegations to be logical, the following must have taken place:

(a) The Accused, while walking away and with his mind clouded with anger, had noticed Alvin talking to PW5, who was a nobody to him, and asking her to stop recording.

(b) At that instant, the Accused had erased all anger from his mind instantaneously and logically deduced that the recording must and would be given to the police, despite the fact that there had been no indication of any police intervention at all up to that point of time.

(c) The Accused had, amidst the panic and chaos, positioned himself conveniently in front of PW5, and had made sure she was recording, and pretended to angrily exclaim that he had gotten hit despite his attempts to break up the fight.

470 The Defence submitted that it was unlikely that the Accused had the cunning and the intention to conjure a tale of innocence in the 30 seconds to 1 minute after the conclusion of the fight, and plan for his proclamation of innocence to be captured in Exhibit D4. The Defence submitted that it was more likely that the Accused was stating what had been going through his mind at the point of time when Exhibit D4 was captured.

(7) DW2’s intentions to help were obvious

471 DW2 was not connected to the group of 5. The Accused had testified that DW2 did not know any of the members from the group of 5. He was not seen speaking to any of them on the night of the incident and had no explicit knowledge of the Accused’s relationship with the aforesaid members of the group as he had not seen the Accused speaking to any of them on the night of the incident^{[note: 774]}.

472 DW2 had also testified during his examination-in-chief that he was initially reluctant to get involved in the fight. He even had his right hand in his pocket, as seen from timestamp 03:49:05 to 03:49:18 in Exhibit P3^{[note: 775]}.

473 However, when the Accused stepped into the fight to pull PW1 out, DW2 went into the fight to help the Accused. The lack of communication between the Accused and DW2 before the incident began (from timestamp 3:49:05 to 3:49:22 of P3) and their subsequent coordination to pull PW1 out from the fight and create distance between him and his attackers show that the Accused’s intentions on the ground were sufficiently clear to DW2. DW2 had testified that he knew that the Accused was trying to stop the fight because he saw the Accused pulling PW1 away^{[note: 776]}.

474 Despite getting punched twice by Alvin at timestamp 03:49:27 to 03:49:29 of P3, DW2 testified during his examination-in-chief that he did not retaliate. In fact, he had gestured to Alvin with both his palms raised and told his assailant to calm down and stop fighting in a conciliatory tone. It is apparent that DW2 had no violent intentions and did not wish to further escalate the fight^{[note: 777]}.

475 For the reasons aforesaid, the Defence submitted that the Prosecution’s claim that DW2 had stepped into the fight to help the Accused in restraining PW1 was inherently incredible. DW2 did not know any members of the group of 5, thus there was no reason for him to share the common object of the unlawful assembly to cause hurt to PW1 and PW3. DW2 did not step into the fight with violent intentions. Hence, he did not retaliate even when he was hit twice by Alvin. The Defence submitted that it was much more probable that DW2 had gone into the fight to help the Accused pull PW1 away from the group of 5.

Whether there was common intention between the Accused and the group of 5

476 The Defence submitted that the Accused did not have the common intention to cause hurt to both PWl and PW3.

477 It was undisputed that the Accused was aware that Brandon had an issue with PWl in the Skyline club and Cyrus had wished to get even with PWl for Brandon’s sake. At the point of Cyrus’ invitation, the Accused had assumed that Cyrus was asking him to join the two of them, and there would only be 3 persons involved: Cyrus, Brandon and the Accused. Nevertheless, the Accused had expressly rejected Cyrus’ offer to join him in confronting PW1. This was largely different from the others as they had responded positively to Cyrus’ invitation. Therefore, from the start, it was clear that there was no intention on the Accused’s part to get himself involved in the scuffle between Brandon, Cyrus and PWl.

478 The Defence reiterated that even when the parties were in Area C, the Accused did not have any intention to attack PW1 and PW3. In fact, Exhibit P3 clearly showed that while Cyrus, Brandon, Nelson, Steven and Alvin had approached PW1 in an aggressive manner and shouting vulgarities, the Accused did not participate and was clearly not involved. Furthermore, the group of 5 could be seen in Exhibit P3 attacking PW1 and PW3, but this was not the case for the Accused. In this regard, the Defence reiterated that the Accused had only gotten himself involved in the fight as he had wanted to stop the fight, albeit poorly executed.

479 In light of the above, the Defence submitted that it would be unsafe to find that the Accused had shared the common object of the unlawful assembly to cause hurt to PW1 and PW3.

Charge in relation to PW3

480 Section 124(1) of the Criminal Procedure Code provided:

Details of time, place and person or thing

124.—(1) The charge must contain details of the time and the place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which it was committed, as are reasonably sufficient to give to the accused notice of what he is charged with.

(2) Despite subsection (1), where the accused is charged with any offence mentioned in subsection (3) —

(a) it is sufficient for the charge —

(i) to specify the gross sum in respect of which the offence is alleged to have been committed without specifying particular items; and

(ii) to specify the dates between which the offence is alleged to have been committed (being a period that does not exceed 12 months) without specifying exact dates; and

(b) the charge so framed is deemed to be a charge of one offence.

481 The Defence also pointed out that point (b) of the “Illustrations” described under s124 CPC, had highlighted the following:

Illustrations

(c) A is charged under section 325 of the Penal Code with voluntarily causing grievous hurt to B. A’s conduct in causing grievous hurt to B is conduct that is an element of the offence that A is charged with.

482 The Defence also pointed out that the charge had stated that the common object in question was to cause hurt to both PW1 and PW3. The Defence noted that the evidence showed that PW3 was not assaulted by the group of 5. The intention of the group of 5 was to cause hurt to PW1. This was corroborated by PW3 herself when she said that she had stayed close to PW1 because she believed that the group of 5 did not have the intention to hit her and if they did “they would have done so, when she stood in front of PW1”.

483 The Defence submitted that in order for an accused to be convicted, all elements of the charge in question would have to be satisfied beyond a reasonable doubt. As one of the element of the Accused’s charge expressly stated that the common object of the assembly was to use violence by punching and kicking both PW1 and PW3, that element was not fulfilled and the charge against the Accused therefore could not be made out.

Benefit of doubt should be given to the Accused

484 The Defence noted that it was firmly established that in situations where there were two views that are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which was favourable to the Accused should be adopted, as stated in the Indian case of Kali Rams v State of Himachal Pradesh [1973] INSC 175; (1973) 2 SCC 808 at page 13.

485 This point was also reiterated locally in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR 601 (at [35]):

“What this means is that in a criminal case, the court may find … the complainant’s story to be more probable than that of the accused person’s version, and yet, be convinced that there is a reasonable possibility that the accused person’s story could be true. If that were the case, the court’s duty is to acquit. Unlike a civil case, the court need not make a decision by concentrating on which of the two versions was more probable. In the criminal trial the court must remind itself to break free from any habitual inclination to contemplate the question of the burden of proof on the basis of a civil case, and instead, ask itself whether there was a reasonable possibility that the accused person’s version was true.”

486 The Defence submitted that there was more than just a reasonable possibility that the Accused’s account of what had happened on the day of the incident was true. This was because he had consistently and cogently maintained his defence from the day he was arrested, investigated and charged, that he went forward to stop the fight by grabbing PW1 to pull him away from his attackers, but ended up getting punched twice by PW3. This had caused him to shout at PW3 that he was trying to stop the fight and asked her why she was hitting him.

487 And during the Accused’s interaction with PW3, while the Accused had pushed her and grabbed her hand which he placed towards her throat area, the Accused had done it in self-defence. This was because PW3 had admitted that she was trying to punch the Accused. PW3 had also agreed that the Accused had grabbed her hand to prevent her from punching him. Any force used by the Accused to stop PW3 from punching him was done in good faith for the purpose of preventing or avoiding harm to himself. Thus, Section 81 of the Penal Code was applicable to justify why the Accused had applied reasonable force to restrain PW3 from punching him. PW3 had also testified that the Accused had, at no point, punched, or kick her.

Defence’s response to the Prosecution’s submissions

488 The Defence also had the following replies to the Prosecution’s submissions:

(a) The Defence submitted that there was a possibility that both the Accused and DW2 did not hear Cyrus giving instruction to the group of 5 to approach PW1. The Defence emphasized that during the trial, the court had asked PW6 whether there was a chance that the Accused and DW2 could have heard what Cyrus had said, and PW6 had replied “[he think[s] there is still a chance, but could also be---you know, they see so many people walked towards 1 guy, then they just go and see” and “Not too sure, but [he is] just saying that there is a chance [Sean and Dean] may have heard.”PW6 then concluded that he “[did not know] the answer” to whether the Accused and DW2 might have heard the said instructions given by Cyrus.

(b) However, the Defence submitted that it was a fact that the Accused and DW2 were not around the area when the said instructions were given, and all claims in relation to the possibility that they “may have heard” Cyrus talking was mere speculation. Based on the above, the Defence emphasized that it would be unsafe to assume that the Accused and DW2 were aware of Cyrus’ plans just because they were around the area.

(c) With regard to DW2’s testimony, the Defence noted that the Prosecution had urged the court to treat DW2’s evidence with caution as “he is an interested party by virtue of his relationship with [Sean]” and his “eagerness to exonerate the accused is clear from his repeating of [Sean]’s said defence” and that DW2 Dean had “even agreed in cross-examination that he “ke[pt] saying the same answer”.

(d) The Defence submitted that the Prosecution’s persistence in discrediting DW2 was ungrounded. Throughout the entire time where DW2 was giving his evidence, he was calm, collected, and had been consistent in his testimonies. DW2 had also explained that he was able to understand his brother’s intention without any communication, because of his understanding of his brother^{[note: 778]}.

(e) The Defence submitted that DW2 was an honest witness, as he had candidly admitted that he had wished for his brother to be exonerated. However, during cross-examination, DW2 had emphasized that he was only here to speak the truth to the court. Therefore, the Defence urged me not to ignore DW2 just because of his relationship with the Accused.

Duty to call rebuttal witness

489 On the issue of rebuttal witnesses, the Defence had referred me to S 230(1)(t) of the CPC, which provided for the following:

Procedure at trial

230.—(1) The following procedure must be complied with at the trial in all courts:

(t) at the close of the defence case, the prosecution shall have the right to call a person as a witness or recall and re-examine a person already examined, for the purpose of rebuttal, and such witness may be cross-examined by the accused and every co-accused, after which the prosecutor may re-examine him;

490 The Defence reiterated that the duty to call for material and/or rebuttal witnesses laid with the Prosecution and the Defence submitted that the Prosecution had failed to discharge itself of its evidential burden.

491 The Defence had also referred me to Nabill where the Court of Appeal had stated that the witnesses need not be called “if it is satisfied that it can rely on other evidence to discharge its evidential burden, such as, for example, close-circuit television (“CCTV”) records which directly contradict the accused person’s defence” , or “if the accused person’s defence is patently and inherently incredible to begin with.” If these were not proven, the Court of Appeal had stated that the prosecution then “runs a real risk that it will be found to have failed to discharge its evidential burden on material facts and issues if the Defence has adduced evidence that is not inherently incredible and the Prosecution fails to call the relevant material witnesses to rebut that evidence.”

492 The Defence noted that the Prosecution had submitted that, “after leading sufficient evidence to prove the charge against the accused, a decision was made to “offer the 4 witnesses to the Defence”. Further, it was also mentioned that “necessary arrangements were made for these witnesses to attend court so that the Defence Counsel may interview them.”

493 In this regard, the Defence submitted that evidence in proving the charge against the Accused was insufficient as reasonable doubt had been raised. There were a number of situations that warranted the calling of rebuttal witnesses, such as the Accused’s rejection towards Cyrus’ offer, and the palm-up gesture towards Alvin by DW2. Furthermore, Steven and Brandon were also material witnesses to the incident and their testimonies would be able to confirm or contradict the Accused’s defence, as stipulated in his statements.

494 The Defence acknowledged that the evidential burden was a burden which could shift between parties, and this was explained Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] SGCA 47²' at [58] as follows:

[The evidential burden] is more accurately designated the evidential burden to produce evidence since, whenever it operates, the failure to adduce some evidence, whether in propounding or rebutting, will mean a failure to engage the question of the existence of a particular fact or to keep this question alive. As such, this burden can and will shift.

495 While the Prosecution had attempted to shift the evidential burden to the Defence, the Defence submitted that this could not be done in the present case.

496 It was emphasized by the Court of Appeal at [77] in Nabill that the Prosecution was “duty-bound to place before the court all relevant material to assist in in its determination of the truth” and that “it would be quite unfair to expect the Defence, in place of the Prosecution, to pose to material witnesses questions which may confirm or, conversely, contradict the accused person’s defence in material ways. The accused person might not have the ability or resources to mount a reasonably robust investigation to find out what evidence a material witness might give. Further, as a practical matter, it might be difficult for the Defence to elicit evidence from a material witness if such evidence would necessarily incriminate the witness.” (Emphasis added)

497 Furthermore, as the Defence had brought up certain defences that identified specific witnesses (i.e. Cyrus and Alvin), the Defence submitted that it was the Prosecution’s duty “to adduce sufficient evidence to rebut a defence raised by the accused person that has properly come into issue”. In support of the above, the Defence also highlighted that the Court of Appeal in Nabill had also expressed its concern over narrow situations whereby specific material witnesses were identified within a specific defence and the Prosecution, despite having had access to these witnesses, had chosen not to call them²⁵.

498 Based on the above, the Defence submitted that the Prosecution had failed to discharge its duty to call upon material and rebuttal witnesses, particularly Cyrus, Brandon and Alvin.

Inference to be drawn

499 The Defence emphasized that it was well-established that a failure by the Prosecution to call a material witness could be a justification for the Court to draw an adverse inference against it.

500 In Public Prosecutor v Muhammad Farid bin Mohd Yusop at [45], the Court of Appeal had endorsed the following observations of the High Court in Mohamed Abdullah s/o Abdul Razak v Public Prosecutor at [41]:

“... In criminal matters, it is well established that where the Prosecution fails to call a material and essential witness, the court has the discretion to draw adverse inference against it under s116 illus (g) of the EA. In deciding whether it is appropriate to draw such adverse presumption against the Prosecution, all the circumstances of the case will be considered, to see whether its failure to call that material witness left a gap in its case, or whether such failure constituted withholding of evidence from the court”.

501 With reference to the above, the Defence submitted that in situations where the “Prosecution had access to a material witness whose evidence would be directly relevant to discharging its evidential burden and was in possession of a statement from that witness, the failure to call that witness to refute the evidence led by the Defence on a fact in issue might justify an inference being drawn against the Prosecution that that witness’s evidence, if led, would have been adverse to it on that fact in issue,”.

502 The Defence also acknowledged the Court of Appeal’s reminder that that the drawing of an adverse inference “must, in the final analysis, depend on the circumstances of each case” and “while the Prosecution was always required to discharge its evidential burden whenever a defence raised by the accused person had properly come into issue, it did not inevitably follow that an adverse inference would be drawn against the Prosecution for its failure to call a material witness to testify on that defence”. Nevertheless, considering the circumstances of the present case, the Defence was of the view that there was a requirement for the Prosecution to discharge its evidential burden and its failure to do so should warrant the drawing of an adverse inference.

503 In support of the above, the Defence had highlighted the following points from the Prosecution’s Case:

(a) The common object had arisen from an earlier incident within Skyline club between PW1 and Brandon;

(b) Cyrus had asked the Accused to join the group of 5 to beat up PW1;

(c) The Prosecution had alleged that the Accused’s intention to prevent PW1 from escaping was “so obvious” that DW2 had stepped in to help; and

(d) The Accused had actively participated in the group attack against PW1 and PW3.

504 The Defence also noted that the following points relating to the Accused’s defence were directly related to the Prosecution’s case:

(a) That the Accused was not involved in the earlier incident as it was between PW1 and Brandon;

(b) When Cyrus extended the invitation to the Accused to join them, the Accused was under the impression that it involved only the 3 of them (namely the Accused, Cyrus and Brandon), Nevertheless, the Accused expressly rejected Cyrus’s offer;

(c) The Accused and DW2 were not present with the group of 5 when Cyrus said “Let’s go and teach him a lesson”;

(d) DW2 did not know that the fight was going to happen, and that he had acted on his own judgment that his brother was struggling to help the victims from the attackers; and

(e) DW2 had his palms out to Alvin to tell him to calm down, but Alvin had reacted aggressively and pushed DW2, before rushing to join the attack on PW1.

505 The Defence submitted that Brandon and Cyrus were material witnesses to the incident, especially when the assault on PW1 had ultimately stemmed from the earlier squabble that Brandon had with PW1, and Cyrus was the one who had rallied the others, and thus forming the group of 5.

506 The Defence also pointed out that the Accused’s defence in relation to his refusal to join Cyrus and DW2’s statement that he had asked Alvin to calm down were directly related to Cyrus and Alvin. As such, Cyrus and Alvin were essential rebuttal witnesses that the Prosecution should have called in response to the Accused’s defence.

507 Based on the above, the Defence submitted that there were significant contradictions and weaknesses in the present matter thus resulting in reasonable doubt arising from the case mounted by the Prosecution. Therefore, it was essential for the Prosecution to call the other witnesses for further clarifications. As that was not done, adverse inference should be drawn against the Prosecution’s failure to discharge their evidential burden.

Conclusion

508 The Defence therefore submitted that the Prosecution had failed to prove its case beyond reasonable doubt, because:

(a) The Prosecution’s key witnesses – PW1, PW3, PW4 and PW6 – were neither reliable nor consistent. In particular, PW6, as one of the co-accused, had admitted that it made sense to him that the Accused was trying to help PW1 by pulling him away.

(b) The evidence led from the victims and other Prosecution’s witnesses on what they perceive from short clips of P3 was unreliable, as the witnesses were giving their own opinion/interpretation of what they had perceived from Exhibit P3 in retrospect.

(c) The Prosecution had failed to call the other co-accused persons, who were material witnesses, to testify at the trial.

(d) The Prosecution’s case was fundamentally unclear as it failed to define at which point it was alleging the Accused to have shared in the unlawful assembly’s common object to cause harm to PW1 and PW3.

(e) PW1’s defence was clear, consistent and logical. He had maintained a consistent account of events that transpired on 25 March 2017 and his defence that he and DW2 were not part of the attackers but were there to help PW1 since his arrest on morning of 25 March 2017. This was borne out from his statements, Exhibits D7 and D8, which were taken when he was in remand.

509 Even assuming this Court was not persuaded by some areas of the Accused’s case, the Defence submitted that this did not change the fact that there were inherent and troubling weaknesses in the Prosecution’s case that generated sufficient reasonable doubt that the Accused did share in the unlawful assembly’s common object to hurt the victims. Therefore, as the Court of Appeal held in GCK at [136] and [140], the Prosecution had failed to discharge its burden of proof to establish the Accused’s guilt. Hence, the Court would be obliged to acquit the Accused, as “weaknesses in the Defence’s case cannot ordinarily shore up what is lacking in the Prosecution’s case to begin with” (GCK at [140]).

510 The Defence therefore urged me to find the Accused not guilty of rioting under Section 147 and to acquit him of the charge.

My Findings and Decision

The applicable law

511 The relevant provisions of the Penal Code were as follows:

Section 141:

An assembly of 5 or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is –

(a) to overawe by criminal force, or show of criminal force, the Legislative or Executive Government, or any public servant in the exercise of the lawful power of such public servant;

(b) to resist the execution of any law, or of any legal process;

(c) to commit any offence;

(d) by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(e) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Section 142

Whoever, being aware of the facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

Section 146

Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

Section 147:

Whoever is guilty of rioting shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to caning.

512 In order for the Prosecution to secure a conviction against the Accused under section 147 of the Penal Code, the following ingredients must be present:

(a) There was force or violence used on PW1 and PW3;

(b) The force or violence was used by an unlawful assembly or by any member of the unlawful assembly of which the Accused was a member; and

(c) The force or violence was used in prosecution of the common object of the unlawful assembly.

513 In the present case, having regard to the evidence presented, it was clear that there was force or violence used by the group of 5 on PW1. Exhibit P3 clearly showed the group of 5 approaching PW1 and attacking him by punching and kicking him. This was also corroborated by the testimony of the all the prosecution witnesses who had given evidence on how the attack had taken place.

514 On the issue of whether there was an unlawful assembly, section 141 of the Penal Code defined an unlawful assembly as a group of 5 or more people whose common object was to commit any of the 5 acts as stated in section 141. In the present case, the evidence clearly pointed to the group of 5 assaulting PW1 by kicking and punching him. It was also clear that the group of 5 did constitute an unlawful assembly as their common object was to cause hurt to PW1. The group of 5 had also all been dealt with by the courts accordingly.

515 The main issue in the present case was whether the Accused and DW2 were part of the unlawful assembly whose common object was to use force or violence against PW1 and PW3.

Definition of Common Object

516 Court of Appeal in Thongthot Yordsa-Art and another v Public Prosecutor [2002] SGCA 33I (“Thongthot Yordsa-Art”) had held that the meaning of “common object” in section 146 of the Penal Code was different from the meaning of “common intention” in section 34 of the Penal Code. Tan Lee Meng J when delivering the judgment of the Court of Appeal in Thongthot Yordsa-Art had [at 16] stated:

“16 The meaning of the term “common object” has been considered by the courts on innumerable occasions. In Chandran v PP [1992] 2 SLR(R) 215 at [12]– [13], this court noted as follows:

... Section 149 does not require proof of a pre-arranged plan and a common intention which a prosecution involving s 34 of the Code would require. The ‘common object’ under s 149 of the Code must not be confused with the ‘common intention’ under s 34 of the Code. Though they both deal with what may be called ‘constructive liability’ for crime, it is important to see the distinction and the way both sections operate.

In Barendra Kumar Ghosh v Emperor AIR 1925 PC 1, Lord Sumner, at 7, said:

There is a difference between object and intention; for though their object is common, the intentions of several members may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action which is the leading feature of s 34, is replaced in s 149, by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence.”

517 I agreed with the Prosecution’s submission that common object did not require a meeting of the minds before the attack and that a common object could be formed on the spot (Lee Tiaw Chwe v PP [1998] SGHC 262 at [18] and Lim Thian Hor v PP [1996] 2 SLR 258 at page 264. However, a member of an unlawful assembly must be aware of the common object and concur in it (Md Anverdeen Basheer Ahmed & Ors v PP [2004] SGHC 233).

518 I also accepted the Defence’s submission that “common intention and common object may mean different things or the same thing depending on the circumstances of the case” and the existence of a common object was an inference of fact to be deduced from the facts and circumstances of each case, and this could be arrived at by considering “the nature of the assembly, the weapons used by the offenders and the behaviour of the assembly at or before the scene of occurrence.”. It was clear to me that the mere presence of an accused person did not render the accused as a member of the unlawful assembly unless there was direct or circumstantial evidence to show that the accused shared the common object of the assembly.

Parties’ positions

519 The Prosecution’s position was that the Accused was part of the unlawful assembly which included the group of 5 and DW2 and the Accused did share the common object of using force or violence on PW1 and PW3

520 The Defence’s position was that the Accused was not part of the unlawful assembly which included the group of 5 and DW2 and the Accused also did not share the common object of the group of 5 which was to use force or violence on PW1.

My assessment of the evidence

521 In my evaluation of the evidence, I was prepared to accept the Defence’s position that the Accused was not part of the unlawful assembly which included the group of 5 and the Accused did not share the common object with the group of 5 which was to use force or violence against PW1 and PW3.

Evidence relating to PW1’s assault

522 The Prosecution’s position was based mainly on Exhibit P3 and the testimony of PW1, PW3, PW4, PW5 and PW6.

523 It was clear from all the evidence that the group of 5 had assaulted PW1 by punching and kicking him. It was also clear from the evidence that the Accused did not hit, punch or kick PW1 at any point of time.

524 Exhibit PW3 showed the group of 5 emerging from the screen when PW1 and PW3 left the lobby of the Singapore Land Tower. Exhibit P3 also showed the group of 5 making their way towards PW1 and PW3 and proceeding to attack PW1 while PW3 tried to defend PW1 from the group of 5 by placing herself between PW1 and the group of 5. Exhibit P3 further showed the Accused and DW2 walking behind the group of 5. From the CCTV footage, it also appeared that they were coming from the same direction as the group of 5 and that they were following the group of 5 and approaching PW1 and PW3. Exhibit P3 also showed the Accused and DW2 watching the group of 5 assaulting PW1.

525 It was also clear from Exhibit PW3 that after the group of 5 had started their attack on PW1, there was a moment where there appeared to be an opening for PW1 to make his escape from the group of 5 and PW1 looked like he was going to run away from the group of 5. At this point, the Accused went in and grabbed PW1 around his arms from behind and pulled him backwards. It could also be seen from Exhibit P3 that PW1 was struggling with the Accused when he was holding onto PW1. After that, the group of 5 caught up with PW1 and continued to attack PW1. It was also not disputed that the Accused had held onto PW1 for about 14 seconds before the group of 5 was able to catch up with PW1 and continued to assault PW1.

526 The Prosecution’s witnesses, PW1, PW3, PW4 and PW5, had basically said the same thing – that the Accused was part of the group of 5 because he had prevented PW1 from escaping by grabbing PW1 from behind and that had effectively allowed the group of 5 to catch up with PW1 to continue assaulting PW1.

527 As for PW6, who was one of the co-accused in this case, PW6 had testified in his EIC that the Accused was part of the group who had attacked PW1. PW6 had also testified that the Accused was with the group of 5 at the smoking area when Cyrus informed them that PW1 had threatened to break his neck and he had told the group “let’s go and teach him a lesson”. PW6 also said that the Accused had grabbed PW1 by the shoulder and tried to punch PW1 because he was friends with Cyrus and he wanted to help Cyrus beat up PW1.

528 However, during cross-examination, PW6 changed his story and he said that the Accused and DW2 was not present when Cyrus met up with the group of 5 at the smoking area and had told the group of 5 to teach PW1 a lesson. PW6 also said that he did not see the Accused hit PW1 at any point of time and it was possible that the Accused was trying to help PW1 rather than being part of the group of 5 in assaulting PW1.

529 I also noted that for PW6, even though he had testified that he had pleaded guilty and was convicted of the offence, PW6’s charge and his Statement of Facts were not tendered as part of the Prosecution’s case. I was of the view that PW6’s charge and Statement would have been very useful in assisting the court to determine how and why the group of 5 had decided to assault PW1 and it could also help determine whether the Accused and DW2 were part of the unlawful assembly and whether they had the common object to use force or violence on PW1.

530 As for the Accused, the Accused had testified that that he had waited at the ground floor of Singapore Land Tower near Sculpture B for his brother DW2 to come down from Club Empire and after DW2 had come down from Club Empire, they were planning to walk go to the taxi stand behind Singapore Land Tower when they saw the fight between the group of 5 and PW1 and the Accused had decided to help PW1. The Accused’s defence was that he was not part of the gang of 5 and he did not share the common object with the group of 5 to cause hurt to PW1.

531 In order for me to determine if the Accused was part of the unlawful assembly which included the group of 5 and that he had shared the common object with the group of 5 to kick and punch PW1, I would have to consider all the facts and the circumstances of the case.

532 Looking at the evidence that had been adduced before me, I was of the view that the evidence that had been adduced could support both parties’ version of events. It was trite law that where evidence tendered could support both the prosecution’s as well as the defence’s case, benefit of the doubt must be given to the defence. As such, I was of the view that the benefit of the doubt ought to be given to the Accused in the present case. My reasons were as follows:

(1) The Accused’s evidence was materially consistent

533 As for the Accused’s evidence, I would agree with the Defence’s submission that the Accused’s evidence was materially consistent from the time he was arrested and had given his statement to the police to his testimony in court:

(a) The Accused had maintained from day 1 that he was not part of the group of 5 and that he did not join the group of 5 to assault PW1. This was clearly reflected in his cautioned statement (Exhibit D7) as well as his long statement to the police (Exhibit D8).

(b) I also noted that the Accused’s testimony in court from his relationship with the group of 5 to the events which had taken place on the night of the assault were materially consistent with what the Accused had told the investigation officer in his long statement which was recorded when he was in remand^{[note: 779]}.

(c) I also noted that the Accused had also maintained his position and he had kept to his story consistently despite rigorous cross-examination by the Prosecution.

(d) I also accepted the Defence’s submission that the Accused appeared to be an honest witness in that he had answered truthfully even when he was aware that the truth could hurt him. For example, during cross-examination, he had agreed with the Prosecution that by grabbing PW1 in the manner that he did from behind, that would have prevented PW1 from being able to turn around and run away^{[note: 780]}. This was even though such an answer would hurt the Accused and make his defence sound less likely. The Accused also did not make any attempt to distance himself from the group of 5 by admitting that he was friends with some of them and on good terms with some of them prior to the incident.

(2) DW2’s testimony

534 While I accepted that DW2 was the Accused’s biological brother and he would wish for the Accused to be found not guilty of the charge, I found that DW2 was a truthful witness in court and he had answered all questions that was posed to him confidently and without hesitation.

535 I also noted that DW2’s testimony in court was materially consistent and it corroborated the Accused’s story as to the events which had taken place on the night of the incident.

536 The Prosecution had submitted that DW2 was part of the unlawful assembly which had the common object to use force or violence on PW1 and PW3 on the night of the incident. From the evidence, it was clear to me that DW2 did not met up with any of the group of 5 at Skyline club before the incident as he was at Club Empire throughout the entire period. Before the incident, DW2 only knew that Cyrus, Brandon, and Nelson were the Accused’s ex-colleagues and he did not know Alvin and Steven. Exhibit P3 showed DW2 coming out of the lobby of Singapore Land Towers and walking towards sculpture B to look for the Accused. DW2 had left the glass door at Singapore Land Towers at 03.48.25 and he had walked towards sculpture B. DW2 could be seen standing at sculpture B at 03.48.40 before walking away from sculpture B. The group of 5 appeared on the screen at 03.48.45.

537 The Prosecution’s position was that DW2 had met up with the Accused and the group of 5 and they had come together to confront PW1 and PW3 when the victims came down from Singapore Land Tower.

538 Looking at the small window period from 03.48.24 to 03.48.45 (about 20 seconds), I found it difficult to come to a conclusion that DW2 could have met up with the group of 5 during these 20 seconds and without speaking to the Accused, had decided that he was going to join the group of 5 to use force on PW1 and PW3 without knowing who was in the group of 5 and what was going on.

539 I was of the view that the Prosecution’s contention was untenable as it was not supported by any evidence.

(3) The evidence in court could not conclusively confirm the Accused’s involvement in the assault on PW1

540 Having considered all the evidence, I was of the view that there were certain aspects of the evidence which had raised a doubt as to whether the Accused was part of the group of 5 who had proceeded to assault PW1:

(a) When the Accused was at Skyline club

(i) The Accused had testified that he saw Brandon, PW1 and Mano at the open bar area at Skyline club and Brandon had told the Accused that he had an altercation with PW1. The Accused had also testified Brandon looked okay, but he subsequently had an argument with Mano and a bouncer had to break up their argument.

(ii) However, Brandon did not indicate to the Accused that he was planning to get even with PW1, nor did he suggest to the Accused to help him beat up PW1.

(b) The Prosecution had submitted that the Accused and the group of 5 had assembled shortly before the riot and they had approached PW1 and PW3 as a group.

(i) While Exhibit P3 did show the Accused and the group of 5 leaving Area C and walking towards the sculpture in area B before the attack, there was no evidence to show that the Accused and the group of 5 had gathered at the smoking area before the attack.

(ii) The only Prosecution witness to testify on this point was PW6 who said in his EIC that the Accused was with the group of 5 at the smoking area when Cyrus told them that the PW1 had threatened to break his neck and he asked them to go and teach PW1 a lesson. However, during cross examination, PW6 changed his story and said that the Accused was not with them at the smoking area and he was not sure if the Accused had heard what Cyrus had told them.

(iii) I also noted that the Prosecution had not called Cyrus, Brendon, Alvin, and Steven to give evidence on this point.

(c) Other than the gathering at the smoking area – there was no other evidence to suggest that the group of 5 and the Accused had gathered anywhere else for the purpose of beating up PW1

(i) Exhibit P3 did show the group of 5 and the Accused gathering at Area C before the assault^{[note: 781]}. However, there was no evidence to show that the group of 5 was planning to beat up PW1 or that the Accused had agreed to join them to beat up PW1 during that period of time.

(ii) The only piece of evidence that linked the Accused to the group of 5 was when the Accused was walking back to Area C with Cyrus from Area X and Cyrus told the Accused that PW1 had an altercation with Brandon at Skyline club and he had asked the Accused if he wanted to join them to talk to PW1 but the Accused had turned him down. This evidence was not rebutted by the Prosecution.

(d) When the group of 5 confronted PW1 and PW3

(i) Exhibit P3 had captured the group of 5 walking towards PW1 and PW3 when they left the lobby of Singapore land Tower. Exhibit P3 also showed Steven walking between the Accused and DW2 when they appeared on Exhibit P3 and they appeared to be following the group that was heading towards PW1 and PW3. Steven started running towards the group but the Accused and DW2 continued to walk at a slow pace.

(ii) The Prosecution’s position was that the Accused and DW2 were part of the group that was going to confront PW1 and PW3. The Defence’s position was that they were headed in the same direction as they were making their way to the taxi stand which was located behind Singapore Land Tower and they had to take the same path in order to get to the taxi stand.

(iii) Looking at Exhibit P3 objectively, I was of the view that Exhibit P3 could support both views and one could not conclusively say that it supported either the Prosecution or the Defence’s position.

(iv) Exhibit P3 also showed that when the group of 5 was assaulting PW1, the Accused and DW2 were just looking at the direction of the group of 5 and PW1. This scene again can go either way. It could suggest that the Accused and DW2 were not part of the group of 5 as they did not join the group of 5 to attack PW1. On the other hand, it could also suggest as that the Prosecution had submitted that both the Accused and DW2 were waiting to join in the assault.

(e) When PW1 was trying to run away from the group of 5 after the initial attack

(i) Exhibit P3 showed that there was an opening and PW1 was trying to run off from the group of 5. The Accused, who was behind PW1, appeared to be positioning himself and he moved in and grabbed PW1 from behind and he pulled PW1 backwards. PW1 then struggled with the Accused for about 14 seconds after which the group of 5 caught up with PW1 and continued to assault PW1.

(ii) The Prosecution had submitted that the evidence had clearly pointed to the Accused preventing PW1 from escaping, when PW1 had managed to break away from the group of 5, by grabbing the Accused from behind so that the group of 5 could continue assaulting PW1. The Prosecution also submitted that this was supported by the evidence of PW1, PW3, PW4 and PW5.

(iii) The Defence had submitted that the Accused was trying to help PW1 by grabbing PW1 to pull PW1 away from the attackers. The Defence also submitted that the Accused’s intention was clear given the fact that he did not cause harm to PW1 when he went to pull PW1 away from the gang of 5. The Accused could have just blocked PW1 from running away or hit him to stop him from running away but he did not do that.

(iv) The Prosecution had also submitted that the fact that the Accused had held onto PW1 clearly showed that he was trying to prevent PW1 from escaping. The Defence on the other hand, said that the reason why the Accused had held onto PW1 for 14 seconds was because PW1 was struggling violently and PW1 was much bigger than the Accused and that was why the Accused had to hold onto PW1 for a longer period. I was of the view that both versions were possible in the circumstances.

(v) I was of the view that this video footage from Exhibit P3 could support either position and it could not conclusively confirm whether the Accused was helping PW1 or preventing him from escaping.

(f) The evidence also clearly showed that the Accused did not hit, kick or punch PW1 at any point of time during the attack and all he had done was to grab PW1.

(i) The Accused had testified that he had no intention to help the group of 5 attack PW1, otherwise he could have just blocked PW1’s escape route rather than pulling him away from the group of 5. The Accused also said that he could have hit PW1 to prevent him from running away rather than pulling him away from the group of 5.

(ii) The evidence also showed that when the Accused was grabbing onto PW1, the Accused did not hit PW1 when he had the opportunity to do so.

(iii) I noted that Exhibit P3 also captured the Accused and DW2’s encounter with PW3 after the Accused had grabbed PW1. The CCTV footage showed PW3 hitting the Accused to get the Accused to release PW1. When that happened, the Accused did let go of PW1 and he turned his attention on PW3, and he tried to stop PW3 from further hitting him. DW2 also intervened and pulled PW3 away from the Accused to stop her from further hitting him. When that was happening, the group of 5 continued to assault PW1. Exhibit P3 also showed PW3 trying to get back to PW1 after DW2 had shoved her to the ground but PW3 was stopped by a plumb lady. The Accused and DW2 moving away even though the group of 5 was still assaulting PW1. I noted that both the Accused and DW2 did not re-join the group of 5 to assault PW1 and they just stood at a distance and watched the group of 5 assault PW1.

(iv) The above evidence had raised some doubt in my mind as to whether the Accused was in fact helping PW1 or attacking him together with the group of 5. It was not clear if the Accused was helping or attacking PW1.

(g) The Prosecution had submitted that the Accused had put on a show for the recording of Exhibit D4.

(i) The Prosecution’s position was that the Accused had seen PW5 trying to film the assault and he had asserted loudly that he had stopped the fight because he knew that PW5 was recording the incident to send it to the police. This was disputed by the Defence. The Defence had submitted that the Accused did not put on a show for the camera as he was not paying any attention to PW5’s filming of the incident. The Defence submitted that the Accused was merely expressing his anger after he was punched by PW3.

(ii) It was clear from the evidence that the Accused had been punched by PW3 on the head on a few occasions just before he was filmed by PW5 saying that he had stopped the fight but was hit. The Accused had testified that when he was hit on the head twice by PW3 after he had pulled PW1 away from the group of 5, he had held onto PW3’s hands and had pushed her hands towards her chest to prevent her from further hitting him. The Accused had also testified that when he grabbed PW3’s hands, he had asked her why she was hitting him when he had stopped the fight. This was corroborated by DW2 who testified in court that he had heard the Accused say the same to PW3. I also noted that the Accused had repeated the same story to the police when they had recorded his long statement during his remand.

(iii) Given that the Accused had already stated his defence to PW3 before he was filmed by PW5, I found the Prosecution’s submission that the Accused had done it in order to put on a show for PW5 rather hard to follow. The Accused had already uttered his defence to PW3 who was the one of the victims. Why would the Accused want to repeat his defence to PW5 if he did not know who PW5 was and why she was taking the video. There was nothing to suggest that the Accused knew that PW5 was related to PW1 and PW3 at that point of time that she was filming Exhibit D4 and that she was filming it for the police.

(iv) I also noted that Exhibit P3 showed that the Accused’s back was towards PW5 and he was walking away when Alvin was shouting at PW5 in a threatening manner to stop filming. PW5 also confirmed that her back was towards the Accused when Alvin told her to stop filming. Any person who suddenly heard someone behind him shouting in a loud and threatening manner would usually react by turning around to see what was happening. In this case, Exhibit P3 showed that the Accused did not react in such a manner, but he continued to walk off. The Accused’s lack of reaction could suggest that he was not paying any attention to PW5 or what was happening around him and this would seem to support the Defence’s contention that the Accused was not aware of his surroundings.

(v) In the present case, it was also not disputed that PW5 had filmed Exhibit D4 very shortly after the Accused had his encounter with PW3. It was clear from Exhibit P3 that the Accused appeared angry when he grabbed PW3’s hand after she had punched him. Exhibit D4 also clearly captured the Accused’s anger as he was speaking in an angry tone when he said that he was hit when he tried to stop the fight. The Accused’s demeanour would seem to support the Defence’s position that he was merely venting his anger about being unjustly punched by PW3 when he was trying to stop the fight when he was captured by PW5 in Exhibit D4.

(vi) Given that the Accused did not know who PW5 was and the purpose of her filming Exhibit D4 , I would agree with the Defence that there was a possibility that the Accused could not have been so cunning as to have made up his defence within the short time that he was hit by PW3 and the time that PW5 took the video (which was less than 2 minutes).

(vii) Given the above, I was of the view that Exhibit D4 could support both the Prosecution’s and the Defence’s version of events and Exhibit D4 could not be regarded as conclusive evidence in support of either parties’ position.

(h) Distance between the sculptures and the smoking area

(i) The Prosecution had submitted that there was a high possibility that the Accused and DW2 could have heard Cyrus tell the rest to go and teach PW1 a lesson because the distance between the sculptures and the smoking area was very small. However, I would agree with the Defence that that was no conclusive proof that Accused and DW2 did hear Cyrus and there was a possibility that both of them did not hear what Cyrus had told the group of 5.

(i) The evidence of PW1, PW3, PW4 and PW5

(i) All the above 4 prosecution witnesses were of the view that the Accused was part of the group of 5 because he was preventing PW1 from escaping so that the group of 5 could continue to assault him. The 4 prosecution witnesses were convinced that the Accused was helping the group of 5 because the timing when the Accused went in to grab PW1, the manner in which the Accused had grabbed PW1 and the length of the time the Accused had held onto PW1 when PW1 was struggling against the Accused.

(ii) Just by looking at the Accused’s conduct as described above, I could understand why the 4 witnesses could have formed the view that the Accused was trying to prevent PW1 from running away from the group of 5. However, I was not convinced that the Accused’s conduct would conclusively point to the fact that he was helping the group of 5.

(iii) Based on the Accused’s story, it was possible that he had wanted to help PW1. The Accused had testified that he knew the group of 5 and one of the reasons why he had pulled PW1 away was to try to stop the fight so that his friends would not get into further trouble. It was also possible that the reason why the Accused had held onto PW1 for quite a long time was because PW1 was much bigger than him and he was struggling against the Accused because he thought that the Accused was holding him back.

(iv) In the present case, it would be fair to say that the only person who knew what the Accused was thinking of at that time was the Accused himself. In order to determine the Accused’s mindset, it would not be fair for me just to pick on small pockets of the CCTV recordings but rather I would have to consider the overall picture. And in the present case, after considering all the evidence, I would agree with the Defence’s submission that even the testimony of the Prosecution witnesses was based on what they had seen in Exhibit P3. However, Exhibit P3 could also support the Accused’s version that he was trying to pull PW1 away from the group of 5.

(j) PW6’s testimony

(i) I was of the view that PW6’s testimony was totally unhelpful to the Prosecution’s case. PW6 had testified in his EIC that the Accused was part of the group of 5 who had assaulted PW1 but during cross-examination, PW6 had changed his story and he said that the Accused was not part of the group of 5 who had assaulted PW1.

541 In the present case, it was not disputed that the group of 5 did constitute an unlawful assembly whose common object was to use force on PW1 by kicking and punching him. The group of 5 had pleaded guilty to the offence and they had been sentenced accordingly.

542 The burden was on the Prosecution to show that the Accused was part of the same unlawful assembly as the group of 5 and that he shared the same common object which was to use force on PW1 by kicking and punching him.

543 It was clear that the mere presence of an accused would not render the accused as a member of the unlawful assembly unless there was evidence to show that he shared the common object with the assembly. The existence of a common object was to be inferred from the facts and circumstances of each case.

544 In the present case, given the evidence before me, I was of the view that the overall evidence could possibly support both the Prosecution as well as the Defence’s version of events.

(4) Cyrus, Brandon, and Alvin

545 Other than PW6, Cyrus, Brandon, Alvin, and Steven were the other co-accused in this case. I noted that the Prosecution had originally included Cyrus, Brandon, and Alvin in their list of witnesses, but the Prosecution had decided to close their case without calling Cyrus, Brandon, and Alvin to give evidence from the stand. I also noted that the Prosecution had given Cyrus’, Brandon’s and Alvin’s statement to the Defence and they had also offered these 3 witnesses to the Defence.

546 I also noted that the Accused had testified in court he had met Brandon at Skyline club when he went to the open area for a smoke and Brandon was there with PW1 and Mano, who was the manager and co-owner of Skyline club. Brandon appeared angry and he had told the Accused that he had an altercation with PW1 at Skyline club. Brandon then had an argument with Mano and both of them had to be separated by a bouncer. Mano then told Brandon to leave Skyline club.

547 The Accused had also testified that Cyrus had spoken to him when they were walking back towards Singapore Land Tower from the area marked “X”. The Accused testified that Cyrus had asked him if he had wanted to join them to talk to PW1 to “scare him” or “to intimidate him” just before they split up. The Accused testified that when Cyrus asked him if he wanted to join them, the Accused told Cyrus that he would not be joining them because he was waiting for his brother, DW2, to go home. The Accused had also informed the police of this defence when he gave his long statement to the police (Exhibit D8) during his period of remand.

548 Exhibit P3 had also captured Alvin hitting DW2 and DW2 raising his open palm towards Alvin before Alvin pushed aside DW2 and rushed to continue to assault PW1. DW2 had testified that he was not part of the group of 5 who had assaulted PW1 and he did not know Alvin. DW2 had also testified that the reason why he had raised his open palms towards Alvin was to tell Alvin to calm down and to inform Alvin that he had no intention to fight. This was in line with the Accused’s defence that both him and DW2 were not part of the group of 5 with the common object to use force or violence on PW1. The Prosecution had suggested to DW2 that the reason why he had raised his open palm towards Alvin was to inform Alvin that he was on the same side as Alvin and that was why Alvin had decided to stop assaulting DW2.

549 I was of the view that the testimony of Brandon, Cyrus and Alvin was important and material as:

(a) Brandon had spoken to the Accused at Skyline club and he was part of the group of 5 at his evidence at the smoking area and his evidence would have clarified what had happened between himself and PW1 and whether the Accused and DW2 were with the group of 5 at the smoking area and whether they had agreed to be part of the unlawful assembly.

(b) As for Cyrus, Cyrus’s testimony was important as Cyrus could have confirmed or absolved the Accused’s involvement and whether the Accused had agreed to join the group of 5 or had declined to do so. Cyrus could also confirm the presence of the Accused and DW2 at the smoking area and whether they heard him tell the group to teach PW1 a lesson.

(c) As for Alvin, Alvin’s evidence would be relevant to confirm what had actually happened between himself and DW2 and whether DW2 was actually telling him to calm down and stop fighting or telling him that he was part of the same group as the group of 5. If DW2 had told Alvin to stop fighting and calm down, that would have supported the Accused’s and DW2’s contention that they were not part of the group of 5 who had assaulted PW1. I also agreed with the Defence that Exhibit P3 did show Alvin shoving DW2 aside with some force after DW2 had held out his hands with his palms open towards Alvin. In my mind, it was possible that DW2 was not telling Alvin that he was part of the same group but he was actually telling Alvin to calm down and he was not interested in fighting and as Alvin’s target was PW1, he decided to shove DW2 aside in order to make his way back to PW1 to continue attacking him

550 Given the above, it was clear to me that Brandon, Cyrus and Alvin were all material witnesses and their testimony would be relevant for the court to determine the Accused’s mindset at the material time, i.e. whether he was part of the group of 5 and whether he shared the common object with the group of 5.

(5) Whose duty was it to call material witnesses

551 It was clear that the production of evidence and the calling of witnesses were matters of discretion for the Prosecution and the Defence. The Prosecution was not bound to produce every single witness involved in a case. All the Prosecution needed to do was to produce witnesses whose evidence could be believed to establish their case beyond a reasonable doubt (See Chua Keem Long v PP [1996] 1 SLR 510).

552 As for the Defence, it was also clear that the Accused was under no duty to elicit any evidence (See Goh Ah Yew v PP [1949] MLJ 150). All the Accused needed to do was to cast a reasonable doubt on the Prosecution’s case. If there were any failure by the Accused to call a material witness, that would affect his ability to raise a reasonable doubt but it would not add anything to the Prosecution’s case (See Mohd Abdullah S/O Abdul Razak v PP [2000] 2 SLR 7890.

553 In the present case, there was a dispute between the parties as to who had the duty to call Brandon, Cyrus, and Alvin, who were material witnesses.

554 The issue of which party had a duty to call a material witness was discussed by the Court of Appeal in the case of Nabill. A summary of the principles which had been derived from Nabill were as follows:

(a) The general proposition was that the Prosecution had no duty to call particular individuals as witnesses.

(b) However, in appropriate circumstances, the failure to call a material witness by the Prosecution might mean that the Prosecution had failed to discharge its evidential burden to rebut the defence advanced by an accused person. In addition, the court may in certain circumstances be entitled to draw an adverse inference pursuant to s 116 Illustration (g) of the Evidence Act that the evidence of a material witness who could have been but was not called by the Prosecution would have been unfavourable to the Prosecution.

(c) Embedded within the concept of proof beyond a reasonable doubt was the Prosecution’s legal burden to prove the charge against the accused person beyond a reasonable doubt and its evidential burden to adduce sufficient evidence to address facts that have been put in issue. The latter burden might also rest on the Defence, depending on the nature of the defence and the fact in issue that is being raised.

(d) As regards the evidential burden, it was well established that this was a burden which could shift between the parties.

(e) The issue of whether the Prosecution had a duty to call a material witness squarely engaged the Prosecution’s evidential burden to adduce sufficient evidence to rebut a defence raised by the accused person that had properly come into issue. This concerned the narrow situation where an accused person had advanced a specific defence which identified specific material witnesses and the Prosecution, despite having had access to these witnesses, had chosen not to call them.

(f) In this specific situation, the Prosecution ought to call the material witnesses in question if it is necessary to do so in order to discharge its evidential burden. To be clear, the Prosecution would not need to call these witnesses if it was satisfied that it could rely on other evidence to discharge its evidential burden, such as, for example, close circuit television (“CCTV”) records which directly contradict the accused person’s defence. Neither would there be any question of the Prosecution having to discharge its evidential burden by calling these witnesses if the accused person’s defence was patently and inherently incredible to begin with. Subject to these obvious limitations, the Prosecution ran a real risk that it could be found to have failed to discharge its evidential burden on material facts in issue if the Defence had adduced evidence that was not inherently incredible and the Prosecution had failed to call the relevant material witnesses to rebut that evidence…”

(g) The Prosecution’s failure to a call a material witness might justify the court drawing an adverse inference against it. It was well established that where the Prosecution failed to call a material and essential witness, the court had the discretion to draw an adverse presumption against it under s 116 illustration (g) of the Evidence Act. In deciding whether it is appropriate to draw such an adverse presumption against the Prosecution, all the circumstances of the case will be considered, to see whether its failure to call that material witness had left a gap in its case, or whether such failure constituted withholding of evidence from the court.

(h) The drawing of an adverse inference would depend on the circumstances of each case. While the Prosecution was always required to discharge its evidential burden whenever a defence raised by the accused person has properly come into issue, it did not inevitably follow that an adverse inference would be drawn against the Prosecution for its failure to call a material witness to testify on that defence.

(i) The broad principles governing the drawing of an adverse inference as set out in Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 were as follows:

(i) In certain circumstances the court might be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in the matter before it.

(ii) If the court was willing to draw such inferences, these would go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(iii) There must, however, have been some evidence, even if weak, which was adduced by the party seeking to draw the inference, on the issue in question, before the court would be entitled to draw the desired inference: in other words, there should be a case to answer on that issue which is then strengthened by the drawing of the inference.

(iv) If the reason for the witness’s absence or silence could be explained to the satisfaction of the court, then no adverse inference may be drawn. If a reasonable and credible explanation was given, even if it was not wholly satisfactory, the potentially detrimental effect of his/her absence or silence could be reduced or annulled.

(v) An adverse inference ought not to be drawn where the failure to produce evidence was reasonably attributable to reasons other than the merits of the case;

(vi) In drawing the relevant inference, the court should put its mind to the manner in which the evidence that was not produced was said to be unfavourable to the party who might reasonably have been expected to produce it; and

(vii) Applying the best evidence rule, an adverse inference should not be drawn unless it could be said that the evidence that was withheld was superior to the evidence already adduced.

(j) The Prosecution was duty-bound to place before the court all relevant material to assist it in its determination of the truth. It would be quite unfair to expect the Defence, in place of the Prosecution, to pose to material witness questions which could confirm or, conversely, contradict the accused person’s defence in material ways. The accused person might not have the ability or resources to mount a reasonably robust investigation to find out what evidence a material witness might give. Further, as a practical matter, it might be difficult for the Defence to elicit evidence from a material witness if such evidence would necessarily incriminate the witness.

555 In the present case, the Accused’s defence was that he was not part of the group of 5 who had attacked PW1 and PW3 and he also did not share the common object with the group of 5. Cyrus and Brandon could be regarded as the mastermind in the present case because the assault had taken place because of what had happened between Brandon and PW1 at Skyline club and what had happened between Cyrus and PW1 when PW1 had allegedly threatened to break Cyrus’ neck.

556 The Accused had testified in court that he was not part of the group of 5 but he was instead trying to help PW1. The Accused had also given evidence that his story could be corroborated by what he had told Cyrus in that he was not interested in joining them to confront PW1. The Prosecution also have had notice of the Accused’s defence from day 1 because the Accused had told the investigation officer who had recorded his statement of the same when he was in remand.

557 The Accused had also testified that he was not with the group of 5 at the smoking area and he was not present and did not hear Cyrus telling the group of 5 to proceed to teach PW1 a lesson at the smoking area. This was confirmed by PW6, who was the only co-accused who was called to testify on behalf of the Prosecution.

558 Given the above, it was clear to me that Cyrus would be able to confirm the Accused’s testimony as to whether he had intended to join the group of 5 to approach PW1 and whether he was together with the group of 5 when Cyrus told them to proceed to teach PW1 a lesson.

559 Brandon’s evidence was also material because he would be able to shed light as to what had happened between himself and PW1 on the night of the incident and whether the Accused was present at the smoking area with the group of 5 and whether he was part of the group which had approached PW1 to teach PW1 a lesson.

560 Alvin’s evidence was also material because Alvin could confirm if DW2 was part of the group of 5 which had attacked PW1. The event which had taken place between Alvin and DW2 would clarify DW2’s role on the night of the incident and this would affect the court’s findings as to whether DW2 was telling the truth.

561 The evidence of Cyrus, Brandon and Alvin was therefore material in determining if the Accused had the common object to use force or violence with the group of 5 and whether he was part of the unlawful assembly with that common object.

562 While I accept the evidence of the Prosecution’s witnesses that they were of the view that the Accused was helping the group of 5 by preventing PW1 from escaping, and Exhibit P3 did show the Accused grabbing PW1 from behind and holding onto him for 14 seconds before the group of 5 caught up with PW1 and continued to attack him, I was of the view that both the Prosecution’s witnesses testimony and Exhibit P3 could support both the Prosecution’s as well as the Defence’s versions of events.

563 In the case, the failure to call these material witnesses had a direct bearing on the issue of whether the Accused was part of the group of 5 which constituted the unlawful assembly and whether the Accused shared the common object with the group of 5. All these issues would affect the merits of the Prosecution’s case. It was also clear that these witnesses were relevant to rebut the Accused’s defence. The testimony of the 3 witnesses would have confirmed or contradicted the Accused’s defence in material ways.

564 As pointed out by Sundaresh Menon CJ in Nabill at [77], “returning to first principles, the Prosecution is duty-bound to place before the court all relevant material to assist it in its determination of the truth. In our judgment, it would be quite unfair to expect the Defence, in place of the Prosecution, to pose to material witnesses questions which may confirm or, conversely, contradict the accused person’s defence in material ways. The accused person might not have the ability or resources to mount a reasonably robust investigation to find out what evidence a material witness might give. Further, as a practical matter, it might be difficult for the Defence to elicit evidence from a material witness if such evidence would necessarily incriminate the witness”.

565 I noted that the Prosecution had offered the 3 witnesses to the Defence in the present case. However, I also noted the comments of Sundaresh Menon CJ in Nabill at [79]:

“79 The Prosecution submitted that the court should not draw an adverse inference against it for failing to call a material witness where the witness has been offered to the Defence or where the Defence is able on its own to trace the witness to testify (citing Lim Young Sien ([58] pra) at [35] and Yoganathan R v Public Prosecutor and another appeal [1999] 3 SLR(R) 346 at [37] respectively). However, we are presently concerned with a situation where the accused person has made a specific claim and the evidential burden falls on the Prosecution to rebut that claim. That being the case, it is for the Prosecution to call a material witness whose evidence may rebut that claim; the mere fact that the witness has been offered to the Defence or that the Defence can on its own trace the witness to testify does not change the analysis in any way. In such circumstances, if the Prosecution fails to call the witness, it may simply be found to have failed to discharge its evidential burden . There may be no need for the court to go further and draw an adverse inference as to what the missing evidence might have revealed.”

566 I also noted that the factual matrix of the present case was very similar to the case of Beh Chew Boo v Public Prosecutor [2020] SGCA 98 (“Beh Chew Boo”). The present case was very similar to Beh Chew Boo in that the Prosecution had given the statements of the 3 material witnesses to the Defence and they had also offered the 3 witnesses to the Defence. Similarly, the Defence had decided not to call the 3 witnesses to give evidence.

567 In Beh Chew Boo, the appellant had entered Singapore on 26 October 2016 riding a Malaysian-registered motorcycle belonging to his friend and ex-colleague Lew, with his girlfriend as pillion. During a routine check, a plastic bag, which was later ascertained to contain not less than 499.97g of methamphetamine, was found in the storage compartment of the motorcycle’s seat. The appellant’s DNA was not found on any of the drug exhibits. However, Lew’s DNA was found on numerous exhibits, including the interior surface of the plastic bag and the exterior surface of several taped bundles and wrapping contained within the plastic bag. The appellant was charged with drug importation under section 7 of the Misuse of Drugs Act. The appellant’s girlfriend was named in the original charge as having been involved jointly in the importation of the drugs, but she was eventually given a discharge not amounting to an acquittal. Lew was subsequently arrested in Singapore for some charges under the Misuse of Drugs Act which were unrelated to the charge against the appellant. Lew was sentenced by the District Court to seven years’ imprisonment and five strokes of the cane on 20 July 2018 for drug importation and possession of drug-related utensils and he was serving his imprisonment term in Singapore when the trial against the appellant proceeded. The prosecution had elected not to call Lew to testify but had offered him as a witness to the defence. The defence had interviewed Lew and issued a subpoena for him to testify at the trial. However, the defence decided not to call him after the appellant had concluded his testimony in court. The defence also did not change its mind or applied to reopen the case after the prosecution had served Lew’s statements on the defence before the exchange of the closing submissions. The appellant’s defence was that he did not know of the existence of the drugs in the motorcycle.

568 The High Court in Beh Chew Boo had convicted the appellant and had imposed the mandatory death penalty. The Court of Appeal allowed the appellant’s appeal and acquitted the appellant of the charge. The Court of Appeal, in applying the principles in Nabill, was of the view that as the appellant’s account was not inherent incredible and it became imperative on the prosecution to call Lew in order to discharge the evidential burden that had shifted to the prosecution. And since the Prosecution had failed to call Lew, who was a material witness, the prosecution had therefore failed to discharge its evidential burden. Tay Yong Kwang JA, in delivering the judgment of the Court of Appeal, had stated at [63]:

“ Evidential burden

63 It is well established that while the legal burden remains on one party throughout, the evidential burden can shift to the opposing party once it has been discharged by the proponent. The opposing party must then call evidence or take the consequences, which may or may not be adverse: Public Prosecutor v GCK and another matter [2020] SGCA 2; [2020] 1 SLR 486 at [132].

Beh’s account was not inherently incredible

64 Beh claimed that he did not know about the existence of the drugs in the Motorcycle’s storage compartment. While a bare denial would not suffice to rebut the statutory presumptions in the MDA or cause the evidential burden to shift to the Prosecution, there were some unique features in this case.

65 First, the Motorcycle belonged to Lew and Beh claimed that he borrowed it for his trip to Singapore. Second, Lew’s DNA was found on the drug exhibits but Beh’s DNA was not on any of the drug exhibits. We emphasise at this juncture that mere absence of DNA evidence would be a neutral fact by itself.

66 Third, not all of Beh’s reasons for entering Singapore were incredible. Beh mentioned from the outset (in his MDP statement and first contemporaneous statement) that he entered Singapore to return the power bank to Ah Huat and a power bank was found at the time of his arrest. Beh stated that he placed the power bank on top of the black jacket but it was unclear from the Prosecution’s evidence where exactly the power bank was found among the things in the storage compartment. This would have some relevance to the issue whether Beh saw the drug bundles when he was doing this. Beh also stated he wished to spend time with Ting and bring her for some good food in Singapore. Both of them did ride into Singapore together and their romantic relationship was not in dispute.

67 On the other hand, we agree with the Judge’s findings in rejecting Beh’s professed reasons of wanting to meet Ah Huat to discuss the upcoming job or to introduce Ah Fei or an unidentified Malay man to Ah Huat. We weigh the rejected reasons for entering Singapore against the apparently legitimate ones and accept that a person may have several reasons for travelling to Singapore, some legitimate and some unlawful, and that such reasons are not necessarily mutually exclusive.

68 Fourth, Beh’s position in his statements and oral evidence was consistent overall that the Motorcycle belonged to Lew and that the authorities should ask Lew regarding the drugs. While he did not assert that the drugs belonged to Lew, his case was that he had no idea how the drugs came to be in the Motorcycle’s storage compartment. It was not unreasonable for him to reason and assume, as he did in re-examination, that since the Motorcycle was borrowed from Lew that morning and the drugs were found in the Motorcycle’s storage compartment, the drugs belonged to Lew…

Beh claimed that he asked the officers after his arrest at the checkpoint to follow up with Lew… Beh’s assertion was significant because when he suggested that the officers call Lew, he could not have known then that only Lew’s DNA would be detected on the drug bundles.

The Prosecution’s failure to call Lew

70 Following from the above, several unique features in this case made it imperative for the Prosecution to call Lew to discharge the evidential burden that had shifted to it. Lew was linked inextricably to the drug bundles in the Motorcycle. Only his DNA was on the drug bundles, a fact which the Prosecution accepted as suggesting that Lew was the person who packed the drugs (GD ([1] supra) at [107]). The Motorcycle belonged to Lew. It was a known fact that Lew was in prison in Singapore during Beh’s trial. The nature of Lew’s involvement was a central part of the Prosecution’s case. The Prosecution postulated three possibilities (ie, “accident”, “unwitting courier” and “sabotage”) as to how the drugs ended up in the Motorcycle. All involved Lew’s actions and intentions. It then sought to demolish these possibilities without calling Lew who was the best person to confirm or deny these possibilities or any other possibilities. The parties and the court were thus left to deal with the hypotheses by logical reasoning and inferences instead of considering direct evidence from Lew.

71 As we pointed out during the hearing, there was a fourth possibility. Beh could have been working for and under the direction of Lew. This was in fact the Prosecution’s case theory, as the Prosecution put to Beh during cross-examination that he was working at the direction of Lew and did not implicate Lew as the owner of the drugs after his arrest because he was working for Lew. This was the Prosecution’s considered position in the light of the evidence available to it, including the DNA evidence and the statement(s) recorded from Lew. While the Prosecution has no duty to locate and to call witnesses to rebut wild or unsubstantiated allegations, the situation here concerned a witness who was readily available to testify, who was linked inextricably to the drug bundles and who featured as a central figure in the Prosecution’s case theory. It is in the light of all these unique features that it became incumbent on the Prosecution to call Lew to testify.

72 Mr Jayaratnam argued that Lew was not called as a witness because the charge against Beh was not a common intention or an abetment charge. Further, in his statement, Lew denied all involvement and the Prosecution would have to apply to cross-examine Lew if he had been called as a witness for the Prosecution. Essentially, calling Lew would not have advanced the Prosecution’s case and it was likely that the Prosecution would have to treat Lew as a hostile witness.

73 Against these considerations, there is the Prosecution’s role in the fair and impartial administration of criminal justice (see Public Prosecutor v Lim Choon Teck [2015] 5 SLR 1395 at [75]). The Public Prosecutor is duty bound to serve the public interest by assisting the court to establish the truth. That would include putting forth relevant evidence, especially where Lew was readily available and his denial of involvement in or knowledge about the drug bundles could be refuted immediately by the objective evidence of the presence of his DNA in them. Further, the presumption of possession in s 21 of the MDA also applies to Lew as the owner of the Motorcycle. Whether Lew’s evidence would turn out to be a “poisoned chalice” (to use Mr Wong’s words during the trial) for the Prosecution or for Beh, it was unsatisfactory that Lew was not called to testify despite being available and linked to the drug bundles through his DNA. We were not told why Lew was not charged despite the presence of his DNA. While the charge against Beh was not a common intention or an abetment charge, the fact remained that the Prosecution’s case at the trial was that Beh was Lew’s drug courier.

74 The Prosecution did try to be fair by offering Lew to the Defence as a witness. Initially, the Defence took up the offer, interviewed Lew and even issued a subpoena for him to testify in court. When the Prosecution put to Beh during cross-examination that he was working for Lew, that was done on the understanding that Lew would be called to testify in court. The Defence declined to call Lew only at the conclusion of Beh’s testimony in court. Therefore, the Prosecution could not be faulted for putting such a case to Beh. However, in the unique circumstances of this case, we think that even at that stage, when the Defence changed its mind, the Prosecution could and should have applied to the Judge to be allowed to re-open its case by calling Lew to testify.

75 The Prosecution also acted fairly when it served on the Defence a copy of Lew’s investigation statement a few days before the exchange of written closing submissions. This accorded with the principles on additional disclosure obligations stated in the Court of Appeal’s decision in Nabill ([52] supra) although that judgment was delivered on 31 March 2020, after the Judge had made his decision and given his written grounds. As noted earlier, the Defence did not change its position after receiving Lew’s statement.”

569 In applying the principles in Nabill, I was of the view that:

(a) In the present case, the Accused’s defence was that he was not part of the unlawful assembly which included the group of 5 and he did not share the common object with the group of 5 to use force on PW1 and PW3.

(b) Cyrus, Brandon and Alvin were material witnesses who could rebut the Accused’s defence.

(c) In the present case, it was clear to me that the Accused had identified these 3 witnesses who could rebut his defence and the Prosecution had decided not to call these witnesses despite having access to them.

(d) The Prosecution had the discretion not to call any material witness if it could rely on other evidence such as CCTV recordings to discharge its evidential burden. In the present case, the Prosecution had chosen to rely mainly on Exhibit P3 and PW1, PW3, PW4 and PW5.

(e) In the present case, I was of the view that the Accused’s defence was not inherently incredible to begin with. Having heard all the evidence, I was also of the view that the evidence from Exhibit P3 and PW1, PW3, PW4 and PW5 could support both the Prosecution’s as well as the Defence’s version of events and it could not conclusively support either version.

(f) It was clear to me that the Accused had made a specific claim in relation to his defence and that was in respect to the fact that he had informed Cyrus of his intention not to be part of the unlawful assembly. It was also clear to me that the defence raised by the Accused was not a bare allegation but supported by his interactions with Cyrus and Brandon as well as his cautioned and long statements.

(g) Given the above, I was of the view that the evidential burden would have shifted to the Prosecution to call the 3 witnesses to rebut the Accused’s defence. The Prosecution, in deciding not to call the 3 material witnesses, had failed to discharge its evidential burden accordingly.

570 Other than the issue of discharging the evidential burden, there was also the issue of adverse inference. On the issue of whether adverse inference should be drawn against the Prosecution, I accepted the legal position that it was not in all cases that adverse inference would be drawn in a case where the Prosecution had failed to call a material witness. The court could draw adverse inference if the prosecution was unable to satisfy the court that it had good reason for not calling a particular witness. However, given the comments of the learned Chief Justice Menon in Nabill, I was of the view that adverse inference need not be drawn against the Prosecution in the present case.

571 The evidential burden on the Prosecution was to prove its case beyond a reasonable doubt. The burden on the Defence was to cast a reasonable doubt on the Prosecution’s case. In the present case, I was of the view that the defence raised by the Accused had cast a reasonable doubt on the Prosecution’s case and the onus was on the Prosecution to rebut the defence raised.

572 As such, by failing to call the 3 witnesses, I was of the view that the Prosecution had failed to discharge its evidential burden of proving that the Accused was part of the gang which included the group of 5 whose common object was to use force and violence on PW1.

Evidence relating to PW3

573 The charge against the Accused in relation to PW3 was that the Accused was part of the unlawful assembly which included the group of 5 whose common object was to use force and violence against PW3 as well. As such, the onus on the Prosecution was to show beyond a reasonable doubt that the unlawful assembly comprising of the Accused and the group of 5 had the common object to use force on PW3.

574 I had gone through the evidence presented by both parties which related to PW3 and I noted that only PW4 and PW5 had given evidence which had suggested that PW3 was assaulted by the group of 5. PW4 had testified that when PW3 tried to help PW1, PW3 was punched and pushed away by the group of 5 as she was in the way of their attack^{[note: 782]}. PW5 did not testify that she saw PW3 being hit by anyone. However, PW5 did say that PW3 had a swell on her eye after the attack and PW3 also informed her that she had injured her finger or knuckle^{[note: 783]}. PW5 also saw PW3 pushing and throwing punches at the attackers because they were hurting PW1^{[note: 784]}.

575 I had gone through PW3’s evidence and I noted that PW3 did not mention in any part of her testimony that the group of 5 had targeted and had assaulted her. However, PW3 did say that the group of 5 was going after PW1 and she testified that she thought that so long as she could stay close to PW1, she could stop the people from beating up PW1 and she could punch anyone by way of self-defence so that they could not get close to PW1 to beat him up^{[note: 785]}. PW3 did that because she thought that the group would not assault a woman^{[note: 786]}.

576 I also noted that in PW2’s medical report on PW3 (Exhibit P2), PW2 had stated that PW3 had “claimed that she had tried to strike someone in a brawl and that her right wrist had been grabbed and twisted ”. As for the injuries suffered by PW3, PW2 wrote in Exhibit P2 that PW3 had “severe pain with swelling and bruising in the right hand, wrist and forearm. X-rays showed no fractures, but had signs of possible injury to the scapholunate ligament including widening of the scapholunate joint space and flexion deformity of the scaphoid. MRI was done which reported that the scapholunate ligament showed scarring and attenuation suggesting a chronic or longstanding ligament injury.”

577 PW2 did not notice any other injury on PW3. PW3 also did not complain to PW2 that she was punched and kicked by the group of 5 or that she had suffered a swell on her eye. Although PW4 had testified that he saw PW3 being punched, PW3 herself had testified that she was not assaulted. PW3’s injuries clearly supported the position that she had not been assaulted by anyone during the attack and her injuries to her wrist were probably caused by her trying to punch the attackers to prevent them from getting to PW1.

578 Looking at PW3’s testimony and injuries and what she had told PW2, the evidence clearly pointed to the fact that the group of 5 were not planning to assault PW3 and they did not hit her at all. In fact, PW3 herself had testified that she was hitting out at the group of 5 because she had wanted to protect PW1 and she knew that the group of 5 would not retaliate against a woman.

579 I also noted PW6’s testimony where he had clearly said that the person whom the group of 5 was targeting was PW1. PW6 did not mention at any point in his testimony that the group of 5 was targeting PW3. I had also viewed Exhibit P3 and I agreed with the Defence that Exhibit P3 did not show any of the group of 5 kicking or punching PW3. However, it was clear from Exhibit P3 that PW3 did kick and punch quite a number of people during the incident, but they did not retaliate. It was clear from Exhibit P3, the only persons who had used force on PW3 was the Accused and DW2. The Accused had pulled PW3 and had shoved her to the ground after he was punched by PW3. When PW3 tried to punch him again, the Accused then her hand and pushed it against her neck and throat area. DW2 on the other hand had grabbed PW3 and pulled her away when she was trying to hit the Accused. However, both the Accused and DW2 did not kick or punch PW3. This was not disputed by both PW3 or the Accused.

580 Given the above, I would agree with the Defence that there was no evidence to support the allegation that the group of 5 had used force and violence on PW3 by kicking and punching her. As such, I would agree with the Defence that the Prosecution had not proven beyond a reasonable doubt that the elements of the charge in relation to PW3.

Whether the right of private defence was applicable to the Accused

581 As for the Accused, PW3 did say that the Accused had grabbed her from around her neck area and he had shoved her to the ground^{[note: 787]}. This was after she had punched him in the head twice. PW3 was of the view that the Accused had pulled and shoved her to the ground to prevent her from going back to help PW1^{[note: 788]}. After the Accused had shoved PW3 to the ground, PW3 tried to punch the Accused again but the Accused proceeded to grab her right hand when she was punching him^{[note: 789]}. The Accused then pushed PW3’s right hand against her neck and throat area near the collarbone and causing her to suffer shortness of breath^{[note: 790]}. PW3 then tried to punch the Accused in her own defence and the Accused pushed her around her chest area with quite a lot of force with his right hand and causing her to almost fall to the ground. Mr X then tried to pull the Accused away from PW3 and DW2 then pulled PW3 from the neck and threw her to the ground^{[note: 791]}. After DW2 had pulled PW3 and thrown her to the ground, both DW2 and the Accused did not join the group of 5 to assault PW1 and they stood at a distance and watched them assault PW1^{[note: 792]}.

582 The Prosecution had accepted the fact that PW3 had punched the Accused and he tried to punch him again before the Accused had grabbed PW3’s hand and pushed it against her throat area. However, the Prosecution submitted that the Accused was not acting in self -defence as PW3’s actions must be looked at in context. The Prosecution had submitted that PW3 had not punched the Accused for a nefarious reason, instead she was exercising her right of private defence as she was trying to protect PW1. The Defence’s position was that the Accused was exercising his right of private defence because he was being assaulted by PW3.

583 In the present case, I was of the view that before we considered the issue of private defence, we should first look at the Accused’s role in respect of the whole incident. The issue of private defence should only be considered in relation to what the Accused was doing.

584 Earlier in my decision, I had ruled that benefit of the doubt ought to be given to the Accused because there was a chance that what he was saying could be true and that the Prosecution had failed to establish the evidential burden to prove that the Accused and the group of 5 were part of the same unlawful assembly with the common object to use force and violence on PW1 by kicking and punching him.

585 Given my earlier ruling, that would mean that I had accepted that there was a chance that Accused was trying help PW1from being assaulted by the group of 5. In this regard, if PW3 had punched the Accused when he was trying to help PW1, that would mean that she was the aggressor and she was committing an offence affecting the human body against the Accused. And if all that the Accused had done was to grab PW3’s hand and push it against her body to prevent her from further assaulting him, then it would seem to me that the Accused was merely exercising his right to private defence in the circumstances.

586 In the present case, both parties agreed the principles relating to private defence was encapsulated in the case of Tan Chor Jin. In Tan Chor Jin, the Court of Appeal had clearly stated that the defence of private defence would require the Accused to show that:

(a) An offence affecting the human body had been committed or was reasonably apprehended;

(b) There was no time to seek the protection of the authorities;

(c) At the time of acting in private defence, the Accused reasonably apprehended danger due to an attempt or threat by PW3 to commit an offence affecting the body; and

(d) The harm caused by PW3 was reasonably necessary in private defence with due allowance given to the dire circumstances under which the Accused was acting.

587 Considering the facts of the present case, PW3 was under the mistaken belief that the Accused was trying to attack PW1 when he was trying to help PW1. PW3 then proceeded to punch the Accused twice on the head when the Accused was trying to help PW1 escape. The Accused had initially pulled her away and pushed her onto the ground to prevent her from further punching him. However, PW3 got up and tried to punch the Accused again. The Accused then grabbed PW3’s hand and pressed it against her chest area near her throat to prevent her from further punching him.

588 I agreed with the Defence that there was no dispute between the Accused and PW3 and that PW3 was the one who had initiated the assault on the Accused. I also accepted the Defence’s submission that the reason why the Accused had held onto PW3’s hand and had pressed her hand against her throat area was to prevent her from further punching him. I also noted the Accused’s evidence that he had told PW3 that he was trying to stop the fight and had asked her why she was hitting him.

589 Having regard to the factors in Tan Chor Jin:

(a) PW3 was clearly committing an offence affecting the human body against the Accused;

(b) It was also clear that there was no time for the Accused to seek the help of authorities when he was being punched by PW3;

(c) The Accused had clearly apprehended danger from the way that PW3 was punching him in the head area; and

(d) The way the Accused had reacted was reasonable in that he did not hit PW3, but he had instead held onto her hands to prevent her from further punching him. The amount of force used by the Accused was reasonable and justifiable as he did not use excessive force to hurt PW3 and the amount of force which the Accused had used was sufficient to prevent her from further assaulting him.

590 Given the above, I was of the view that the Accused had satisfied the conditions in Tan Chor Jin to succeed on private defence

Other issues raised by parties

The refusal by Prosecution to give the exact order of witnesses that the Prosecution had intended to call

591 The Defence had contended that the Prosecution had prejudiced their preparation of the defence by refusing to give them the exact order of the witnesses that they had intended to call.

592 In the present case, I noted that the Prosecution had informed the Defence of the general order of witnesses by way of their List of Witnesses even before the trial. I would agree with the Prosecution that it was their prerogative to decide on the general order of witnesses and that the exact order could change depending on the progress of the trial as well as the availability of the witnesses. I also agreed with the Prosecution that they were under no obligation to provide the exact sequence of witnesses in advance.

The offering of Cyrus, Brandon, and Alvin as witnesses to the Defence without prior notice and causing these 3 witnesses to become hostile to the Defence

593 The Defence had also contended that they were prejudiced in the preparation of their defence by the Prosecution’s conduct of offering Cyrus, Brandon, and Alvin as witnesses to the Defence without prior notice at the close of the Prosecution’s case. That had caused Cyrus, Brandon, and Alvin to become hostile towards the Defence, making it impossible for the Defence Counsel to “illicit their cooperation” during interviews.

594 The Prosecution had denied that they had offered the 3 witnesses to the Defence without notice. The Prosecution pointed out that Cyrus, Brandon, and Alvin were originally scheduled to give evidence as they were listed as witnesses in the Prosecution’s List of Witnesses. The Prosecution had made the decision not to call these 3 witnesses having decided that they had led sufficient evidence to prove the charge against the Accused. After that, the Prosecution had immediately made the arrangements for the 3 witnesses to attend court and informed the Defence of the same so that the Defence could interview the 3 witnesses.

595 Given the above, I would agree with the Prosecution that they had not been unfair to the Defence as they had made the necessary arrangements for the 3 witnesses to attend court to be interviewed by the Defence after they had decided that they no longer needed the testimony of the 3 witnesses.

596 As to the hostility of the 3 witnesses towards the Defence, I also agreed with the Prosecution that there was no evidence to suggest that the Prosecution had done anything to agitate or make these witnesses to not want to cooperate with the Defence. In any event, even if witnesses were not cooperative, it was open to parties to apply for subpoenas to compel their attendance and the witnesses would be obliged to attend the hearings as required.

The late disclosure of Exhibit D4 by the Prosecution to the Defence

597 The Defence had alleged that the Prosecution had breached their duty of fairness only disclosing Exhibit D4 to them on the first day of the trial. The Prosecution’s position was that Exhibit D4 had only been surfaced to the Prosecution just before the start of the trial and they had immediately forwarded the same to the Defence.

598 While I agree with the Defence that as part of Kadar’s disclosure obligation, all disclosable materials should be given to the Defence before the beginning of the trial, I was prepared to accept the Prosecution’s explanation that PW7, the investigation officer had only handed Exhibit D4 to the Prosecution on the morning of the first day of trial and that the Prosecution had immediately given a copy of the same to the Defence. In any event, I had informed parties that I was prepared to give parties time to go through Exhibit D4 if they required time to do so but both parties had informed me that that was not necessary.

Conclusion

599 In Public Prosecutor v Liew Kim Choo [1997] 3 SLR 699, Yong Pung How CJ in quoting Lord Diplock in the leading case of Haw Tua Tau v PP [1981] 2 MLJ 49 [at 57]:

“57. As Lord Diplock stated in the leading case of Haw Tua Tau v PP [1981] 2 MLJ 49 :

“For reasons that are inherent in the adversarial character of criminal trials under the common law system, it does not place upon the court a positive obligation to make up its mind at that stage of the proceedings whether the evidence adduced by the prosecution has by then already satisfied its beyond reasonable doubt that the accused is guilty. Indeed it would run counter to the concept of what is a fair trial under that system to require the court to do so.”

58. The prosecution must, at the end of trial, go beyond what it must show as the close of the prosecution’s case. At the close of the prosecution’s case, the prosecution need only raise a prima facie case which, if uncontradicted by the defence, would justify a conviction. That case could be made out of proved facts or reasonable inferences drawn from the proved facts. The nature of the inferences as to the primary facts must be drawn at the close of the prosecution’s case were described by Lord Diplock in Haw Tua Tau as follows:

“for the purpose of reaching the decision called for by s 189(1) the court must act on the presumption (a) that all such evidence of primary fact is true, unless it is inherently so incredible that no reasonable person would accept it being true; and (b) that there will be nothing to displace those inferences as to further facts or to the state of mind of the accused which would reasonably be drawn from the primary facts in the absence of any further explanation.”

59. For obvious reasons, in deciding the issue of guilt at the close of the trial, this standard will not suffice. The evidence must be subjected to the highest not lowest standard of scrutiny. The facts proved by the prosecution must therefore satisfy the trial judge beyond reasonable doubt that the correct inference to be drawn from those facts is that the accused person is guilty. The trial judge is not allowed to act on the presumption that the primary evidence is true. Nor is he to make only a minimal assessment – to decide if the necessary inferences “would reasonably be drawn”. He must make a maximum assessment…

60. I therefore had to consider the evidence afresh, without reference to my conclusions in the first appeal, which conclusions were premises on a different standard of proof”

600 The issue of burden of proof was also considered in the case of Public Prosecutor v Mohammed Liton Mohammed Syed Mallik [2007] SGCA 48 where the Court of Appeal [at 34] commented:

“34 …in relation to the requisite burden of proof, it needs no reminding that the burden lies squarely with the Prosecution to prove the accused person’s guilt beyond a reasonable doubt. As Rajah JA said in Sakthivel Punithavathi ([32] supra at [78]):

Whatever is thought about the myriad objectives of criminal punishment, one fundamental principle has been hailed as a cornerstone both at common law and in the Evidence Act (Cap 97 1997 Rev Ed): before an accused can be convicted of a crime, his guilt must be proved beyond a reasonable doubt. This bedrock principle is sacrosanct in our criminal justice system and constitutes a fundamental right that the courts in Singapore have consistently emphasised and upheld as a necessary prerequisite for any legitimate and sustainable conviction: see, for example, Jagatheesan [[66] supra]; … Took Leng How v PP [2006] 2 SLR (R) 70.

Indeed, the trial judge also alluded to this important principle in his judgment in respect of the second trial (see Mohammed Liton (No. 2) ([30] supra)). At [4] of that judgment, he stated that:

Unlike civil cases, where the court may choose between competing stories and accept the one on a balance of probabilities, that is to say, accepting that version because it seemed more plausible than the other, in a criminal case, there is an important norm to be taken into account at all times – that where there is a reasonable doubt, that doubt must be resolved in favour of the accused. It is inherent (in) the requirements that the prosecution proves its case beyond reasonable doubt. [emphasis added]

35. As to what proof “beyond a reasonable doubt” (per Rajah JA in Sakthivel Punithavathi ([32] supra) at [78] means, we would endorse the definition accepted by him in Jagatheesan 9[32] supra at [55]), viz, the description of “reasonable doubt“ as “reasoned doubt” [emphasis in original ] – which in turn mandates that all doubt, for which there is a reason relatable to and supported by the evidence present, be taken into account in favour of the accused . Reasonable doubt might also arise by virtue of lack of evidence submitted, if such evidence is necessary to support the Prosecution’s theory of guilt: see Jagatheesan at [61]. Indeed, the trial judge also similarly referred to such a meaning of the standard of “beyond a reasonable doubt” in his judgment in respect of the second trial (see Mohammed Liton (No 2) ([30] supra at [41]):

What this means is that unlike a civil case, the court’s verdict might not merely be determined on the basis that as between two competing stories, which version was the more plausible one. In a criminal case, the court may find … the complainant’s story to be more probable than that of the accused person’s version, and yet, be convinced that there is a reasonable possibility that the accused’s person’s story could be true. If that were the case, the court’s duty is to acquit . Unlike a civil case, the court need not make a decision by concentrating on which one of the two versions was more probable. In a criminal trial the court must remind itself to break away from any habitual inclination to contemplate the question of the burden of proof on the basis of a civil case, and instead, ask itself whether there is a reasonable possibility that the accused person’s version was true. (emphasis mine)

601 I was of the view that the evidence presented by parties could supported both the Prosecution as well as the Defence case. Having considered the evidence before me, I would agree with the Defence that:

(a) It was possible that the Accused was not part of the unlawful assembly with the group of 5;

(b) It was possible that the Accused did not share any common object with the group of 5;

(c) It was possible that PW1 had actually wanted to help PW1 by pulling him away from the group of 5 who were attacking him;

(d) As for PW3, there was no evidence to show that the group of 5 was attacking PW3. There was also no evidence to show that the Accused had attacked PW3. The evidence suggested that when the Accused grabbed PW3’s hand and held it against her chest, it was to prevent her from further hitting him on his head.

602 In a case where there was a reasonable doubt, the doubt should be resolved in favour of the Accused. As such, I was of the view that the Prosecution had not proven its case under section 147 of the Penal Code beyond a reasonable doubt against the Accused and I accordingly acquitted the Accused of the charge.

603 The Prosecution being dissatisfied with my decision had filed a Notice of Appeal against my decision.[Context] [Hide Context]

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^{[note: 93]}NE Day 4 Page 31

^{[note: 94]}NE Day 3 Page 72

^{[note: 95]}NE Day 3 Page 73, 92-93; see 03.48.43 to 03.48.53 in P3

^{[note: 96]}NE Day 3 Page 74

^{[note: 97]}NE Day 3 Page 74

^{[note: 98]}NE Day 3 Page 74

^{[note: 99]}NE Day 3 Page 93

^{[note: 100]}NE Day 3 Page 93; see 03.48.53 in P3

^{[note: 101]}NE Day 3 Page 93

^{[note: 102]}NE Day 3 Page 95-97; see 03.48.53 to 03.48.57 in P3

^{[note: 103]}NE Day 3 Page 99

^{[note: 104]}NE Day 3 Page 100

^{[note: 105]}NE Day 3 Page 100; see 03.48.57 to 03.49.03 in P3

^{[note: 106]}NE Day 3 Page 101; see 03.49.04 to 03.49.04 in P3

^{[note: 107]}See 03.49.07 to 03.39.13 in P3

^{[note: 108]}NE Day 3 Page 102; Day 4 Page 36

^{[note: 109]}NE Day 4 Page 36

^{[note: 110]}NE Day 3 Page 102

^{[note: 111]}NE Day 3 Page 102

^{[note: 112]}NE Day 3 Page 102

^{[note: 113]}NE Day 3 Page 104

^{[note: 114]}NE Day 4 Page 39

^{[note: 115]}NE Day 3 Page 108; see 03.49.12 to 03.49.16 in P3

^{[note: 116]}NE Day 3 Page 109; Day 4 Page 59

^{[note: 117]}NE Day 3 Page 109; Day 4 Page 59; see 03.49-16 to 03.49.17 in P3

^{[note: 118]}NE Day 3 Page 109

^{[note: 119]}NE Day 3 Page 109; Day 4 Page 93

^{[note: 120]}NE Day 4 Page 94

^{[note: 121]}NE Day 3 Page 110; Day 4 Page 58

^{[note: 122]}NE Day 3 Page 110; see 03.49.17 to 03.49.21 in P3

^{[note: 123]}NE Day 3 page 110

^{[note: 124]}NE Day 3 Page 111

^{[note: 125]}NE Day 3 Page 111; see 03.49.21 to 03.49.30 in P3

^{[note: 126]}NE Day 3 Page 112; see 03.49.21 to 03.49.23 in P3

^{[note: 127]}NE Day 3 Page 112

^{[note: 128]}NE Day 3 Page 112; see 03.49.23 to 03.49.30 in P3

^{[note: 129]}NE Day 3 Page 112, 114; Day 4 Page 63, 97; see 03.49.23 to 03.49.24 in P3

^{[note: 130]}NE Day 4 Page 67

^{[note: 131]}NE Day 4 Page 67

^{[note: 132]}NE Day 3 Page 115; Day 4 Page 73; see 03.49.30 to 03.49.32 in P3

^{[note: 133]}NE Day 3 Page 118

^{[note: 134]}NE Day 3 Page 119

^{[note: 135]}NE Day 3 Page 112; Day 4 Page 74

^{[note: 136]}NE Day 3 Page 118; Day 4 Page 66, 68, 74-75, 77; see 03.49.34 to 03.49.39 in P3

^{[note: 137]}NE Day 3 Page 116-118; see 03.49.32 to 03.49.34 in P3

^{[note: 138]}NE Day 3 Page 120

^{[note: 139]}NE Day 3 Page 120; Day 4 Page 66; see 03.49.39 to 03.49.45 in P3

^{[note: 140]}NE Day 4 Page 81; see 03.49.39 to 03.49.50 in P3

^{[note: 141]}NE Day 3 Page 122

^{[note: 142]}NE Day 4 Page 15

^{[note: 143]}NE Day 3 Page 123

^{[note: 144]}NE Day 4 Page 17

^{[note: 145]}NE Day 4 Page 89

^{[note: 146]}NE Day 3 Page 126-127; Day 4 Page 90

^{[note: 147]}NE Day 3 Page 127

^{[note: 148]}NE Day 4 Page 90

^{[note: 149]}NE Day 4 Page 90-91

^{[note: 150]}NE Day 3 Page 128-129

^{[note: 151]}NE Day 3 Page 129

^{[note: 152]}NE Day 5 Page 5

^{[note: 153]}NE Day 5 Page 5

^{[note: 154]}NE Day 5 Page 5

^{[note: 155]}NE Day 5 Page 42

^{[note: 156]}NE Day 5 Page 9

^{[note: 157]}NE Day 5 Page 10; Day 6 Page 3

^{[note: 158]}NE Day 6 Page 3

^{[note: 159]}NE Day 5 Page 10-11

^{[note: 160]}NE Day 6 Page 4

^{[note: 161]}NE Day 6 Page 13

^{[note: 162]}NE Day 6 Page 14

^{[note: 163]}The person who was wearing a dark blue shirt and seen talking to PW5 at 03.48.44 in P3

^{[note: 164]}NE Day 5 Page 15

^{[note: 165]}NE Day 5 Page 16; see 03.48.44 in P3

^{[note: 166]}NE Day 5 Page 18, 21; see 03.49.14 in P3

^{[note: 167]}NE Day 5 Page 21; see 03.49.19 in P3

^{[note: 168]}NE Day 6 Page 19; see 03.49.01 in P3

^{[note: 169]}NE Day 6 Page 22

^{[note: 170]}NE Day 6 Page 22; see 03.49.14 in P3

^{[note: 171]}NE Day 5 Page 5-6

^{[note: 172]}NE Day 5 Page 6

^{[note: 173]}NE Day 5 Page 6

^{[note: 174]}NE Day 5 Page 7

^{[note: 175]}NE Day 5 Page 18

^{[note: 176]}NE Day 5 Page 18

^{[note: 177]}NE Day 5 Page 19; see Exhibit D1 (16)

^{[note: 178]}NE Day 8 Page 9-10

^{[note: 179]}NE Day 5 Page 20, 22, 23; see 03.49.14 to 03.49.18 and 03.49.18 to 03.49.21 in P3

^{[note: 180]}NE Day 5 Page 40; see 03.49.16 to 03.49.18 in P3

^{[note: 181]}NE Day 5 Page 41; see 03.49.18 to 03.49.21 in P3

^{[note: 182]}NE Day 5 Page 20, 24-25; Day 6 Page 33, 39; see 03.49.23 in P3

^{[note: 183]}NE Day 8 Page 11-12

^{[note: 184]}NE Day 5 Page 23

^{[note: 185]}NE Day 5 Page 8, 23

^{[note: 186]}NE Day 5 Page 8-9

^{[note: 187]}NE Day 5 Page 26-27; see 03.49.19 to 03.49.26 in P3

^{[note: 188]}NE Day 6 Page 25

^{[note: 189]}NE Day 6 Page 26

^{[note: 190]}NE Day 6 Page 36; Day 6 Page 37-39, 51-52, 57; see 03.49.18 in P3; Day 8 Page 13

^{[note: 191]}NE Day 5 Page 26; Day 6 Page 35; see 03.49.19 in P3 and Exhibit D1(26)

^{[note: 192]}NE Day 5 Page 27; see 03.49.26 in P3

^{[note: 193]}NE Day 5 Page 28

^{[note: 194]}NE Day 5 Page 28

^{[note: 195]}NE Day 5 Page 28

^{[note: 196]}NE Day 5 Page 29; Day 6 page 43; see 03.49.26 in P3

^{[note: 197]}NE Day 6 Page 44

^{[note: 198]}NE Day 6 Page 48

^{[note: 199]}NE Day 5 Page 29

^{[note: 200]}NE Day 5 Page 29

^{[note: 201]}NE Day 5 Page 29

^{[note: 202]}NE Day 6 Page 69

^{[note: 203]}NE day 5 Page 29; see 03.49.28 to 03.49.31 in P3

^{[note: 204]}NE Day 5 Page 30

^{[note: 205]}NE Day 5 Page 31-32

^{[note: 206]}NE Day 5 Page 30 - 31

^{[note: 207]}NE Day 6 Page 69-70

^{[note: 208]}NE Day 7 Page 3

^{[note: 209]}NE Day 5 Page 32; see 03.49.49 to 03.50.06 in P3

^{[note: 210]}NE Day 5 Page 32

^{[note: 211]}Exhibit D4

^{[note: 212]}NE Day 6 Page 67

^{[note: 213]}NE Day 5 Page 36

^{[note: 214]}NE Day 5 Page 36; see 00.36 in D4

^{[note: 215]}NE Day 6 Page 68; see 03.49.56 to 03.50.03 in P3

^{[note: 216]}NE Day 8 Page 18-19

^{[note: 217]}NE Day 8 Page 16

^{[note: 218]}NE Day 5 Page 9

^{[note: 219]}NE Day 6 Page 23

^{[note: 220]}NE Day 8 Page 30

^{[note: 221]}NE Day 8 Page 40

^{[note: 222]}NE Day 8 Page 54

^{[note: 223]}NE Day 8 Page 41, 52

^{[note: 224]}NE Day 8 Page 41

^{[note: 225]}NE Day 8 Page 47

^{[note: 226]}NE Day 8 Page 49, 59; see 03.48.24 to 03.48.41 in P3

^{[note: 227]}NE Day 8 Page 31-32, 61; see 03.48.40 to 03.48.57 in P3

^{[note: 228]}NE Day 8 Page 32-33, 62; see 03.49.14 in P3

^{[note: 229]}NE Day 8 Page 33

^{[note: 230]}NE Day 8 Page 34

^{[note: 231]}NE Day 8 Page 33, 50

^{[note: 232]}NE Day 8 Page 62

^{[note: 233]}NE Day 8 Page 35, 65; see 03.49.14 to 03.49.18 in P3

^{[note: 234]}NE Day 8 Page 65

^{[note: 235]}NE Day 8 Page 66

^{[note: 236]}NE Day 8 Page 33

^{[note: 237]}NE Day 8 Page 66

^{[note: 238]}NE Day 8 Page 67

^{[note: 239]}NE Day 9 Page 38

^{[note: 240]}NE Day 8 Page 67

^{[note: 241]}NE Day 8 Page 67-68

^{[note: 242]}NE Day 9 Page 12, 40

^{[note: 243]}NE Day 8 Page 68; see 03.49.18 to 03.49.21 in P3

^{[note: 244]}NE Day 8 Page 69-70; see 03.49.21 to 03.49.34 in P3

^{[note: 245]}NE Day 8 Page 42, 50

^{[note: 246]}NE Day 8 Page 37, 42

^{[note: 247]}NE Day 8 Page 43-44

^{[note: 248]}NE Day 8 Page 33, 51

^{[note: 249]}NE Day 8 Page 75

^{[note: 250]}NE Day 8 Page 37-38, 51

^{[note: 251]}NE Day 8 Page 51

^{[note: 252]}NE Day 8 Page 34

^{[note: 253]}NE Day 8 Annex A Page 4

^{[note: 254]}NE Day 8 Page 35

^{[note: 255]}NE Day 8 Page 36

^{[note: 256]}NE Day 8 Page 72

^{[note: 257]}NE Day 8 Page 74

^{[note: 258]}NE Day 8 Page 38

^{[note: 259]}NE Day 8 Page 38

^{[note: 260]}NE Day 8 Page 35

^{[note: 261]}NE Day 8 Page 57-58

^{[note: 262]}NE Day 8 Page 39; Day 9 Page 3-4

^{[note: 263]}NE Day 9 Page 3

^{[note: 264]}NE Day 8 Page 76

^{[note: 265]}NE Day 8 Page 77

^{[note: 266]}NE Day 8 Page 77

^{[note: 267]}NE Day 8 Page 80

^{[note: 268]}NE Day 8 Page 80

^{[note: 269]}NE Day 8 Page 84

^{[note: 270]}NE Day 8 Annex A Page 1

^{[note: 271]}NE Day 8 Annex A Page 1; Day 10 Page 6; see 03.49.59 in P3

^{[note: 272]}NE Day 8 Annex A Page 2; see 03.49.59 to 03.50.04 in P3

^{[note: 273]}NE Day 8 Annex A Page 4

^{[note: 274]}NE Day 10 Page 11-12

^{[note: 275]}NE Day 10 Page 8

^{[note: 276]}NE Day 9 Page 31

^{[note: 277]}NE Day 8 Annex A Page 3; see 03.50.02 in P3

^{[note: 278]}NE Day 8 Annex A Page 3

^{[note: 279]}NE Day 8 Annex A Page 4; see 03.50.02 to 03.50.28 in P3

^{[note: 280]}NE Day 10 Page 18, 24, 48, 81

^{[note: 281]}NE Day 10 Page 49

^{[note: 282]}NE Day 10 Page 35-36

^{[note: 283]}NE Day 10 Page 48

^{[note: 284]}NE Day 10 Page 83

^{[note: 285]}NE Day 10 Page 84

^{[note: 286]}NE Day 10 Page 49

^{[note: 287]}NE Day 10 Page 50, 82

^{[note: 288]}NE Day 10 Page 20

^{[note: 289]}NE Day 10 Page 21, 24

^{[note: 290]}NE Day 10 Page 25

^{[note: 291]}NE Day 10 Page 25

^{[note: 292]}NE Day 10 Page 22-23

^{[note: 293]}NE Day 10 Page 23

^{[note: 294]}NE Day 10 Page 79-80

^{[note: 295]}NE Day 10 Page 21-22, 51

^{[note: 296]}NE Day 10 Page 52

^{[note: 297]}NE Day 10 Page 51

^{[note: 298]}NE Day 10 Page 106-107,108

^{[note: 299]}NE Day 10 Page 52, 56; see 03.48.26 to 03.48.41 in P3

^{[note: 300]}NE Day 10 Page 52

^{[note: 301]}NE Day 10 Page 57; see 03.48.41 to 03.48.57 in P3

^{[note: 302]}NE day 10 Page 58

^{[note: 303]}NE Day 10 Page 59

^{[note: 304]}NE Day 10 Page 59

^{[note: 305]}NE Day 10 Page 59, 109-110; see 03.49.05 to 03.49.09 in P3

^{[note: 306]}NE Day 10 Page 60; see 03.49.10 to 03.49.14 in P3

^{[note: 307]}NE Day 10 Page 61; see 03.49.09 to 03.

^{[note: 308]}NE Day 10 Page 26, 61; see 03.49.04 to 03.49.14 in P3

^{[note: 309]}NE Day 10 Page 27-28, 61; see 03.49.09 to 03.49.11 in P3

^{[note: 310]}NE Day 10 Page 62, 109, 113

^{[note: 311]}NE Day 10 Page 115; see 03.48.55 in P3

^{[note: 312]}NE Day 10 Page 62

^{[note: 313]}NE Day 10 Page 62-63, 122-123

^{[note: 314]}NE Day 10 Page 62-63; see 03.49.16 to 03.49.19

^{[note: 315]}NE Day 10 Page 63, 65-66

^{[note: 316]}NE Day 10 Page 66; see 03.49.19 in P3

^{[note: 317]}NE Day 10 Page 66

^{[note: 318]}NE Day 10 Page 67; see 03.49.19 to 03.49.21 in P3

^{[note: 319]}NE Day 10 Page 67; see 03.49.21 in P3

^{[note: 320]}NE Day 10 Page 68; see 03.49.19 to 03.49.21 in P3

^{[note: 321]}NE Day 10 Page 69; see 03.49.21 to 03.49.27 in P3

^{[note: 322]}NE Day 10 Page 70

^{[note: 323]}NE Day 10 Page 70

^{[note: 324]}NE Day 10 Page 71; Day 11 Page 5, 7

^{[note: 325]}NE Day 10 Page 128; Day 11 Page 7-9

^{[note: 326]}NE Day 11 Page 16

^{[note: 327]}NE Day 11 Page 11

^{[note: 328]}NE Day 11 Page 15

^{[note: 329]}NE Day 11 Page 16

^{[note: 330]}NE Day 11 Page 50, 51 ,53

^{[note: 331]}NE Day 11 Page 62

^{[note: 332]}NE Day 10 Page 34

^{[note: 333]}NE Day 10 Page 36

^{[note: 334]}NE Day 10 Page 36

^{[note: 335]}NE Day 10 Page 37

^{[note: 336]}NE Day 10 Page 37-38

^{[note: 337]}NE Day 10 Page 38

^{[note: 338]}NE Day 10 Page 39

^{[note: 339]}NE Day 10 Page 41

^{[note: 340]}NE Day 10 Page 45, 48

^{[note: 341]}NE Day 11 Page 68

^{[note: 342]}NE Day 11 Page 68

^{[note: 343]}Area marked A in P6

^{[note: 344]}Area marked X in P6

^{[note: 345]}Area marked C in P6

^{[note: 346]}Area marked B in P6

^{[note: 347]}Area marked A in P6

^{[note: 348]}NE Day 12 Page 8

^{[note: 349]}NE Day 12 Page 8

^{[note: 350]}NE Day 12 Page 8

^{[note: 351]}NE Day 12 Page 9

^{[note: 352]}NE Day 12 Page 9

^{[note: 353]}NE Day 12 Page 9

^{[note: 354]}NE Day 12 Page 9

^{[note: 355]}NE Day 12 Page 13-14

^{[note: 356]}NE Day 12 Page 10

^{[note: 357]}NE Day 13 Page 63

^{[note: 358]}NE Day 12 Page 10

^{[note: 359]}NE Day 12 Page 10

^{[note: 360]}NE Day 12 Page 11

^{[note: 361]}NE Day 14 Page 1

^{[note: 362]}NE Day 13 Page 63

^{[note: 363]}NE Day 15 Page 28

^{[note: 364]}NE Day 12 Page 14

^{[note: 365]}NE Day 12 Page 14

^{[note: 366]}NE Day 12 Page 15

^{[note: 367]}NE Day 12 Page 15

^{[note: 368]}NE Day 13 Page 47

^{[note: 369]}NE Day 13 Page 52

^{[note: 370]}NE Day 15 Page 19

^{[note: 371]}NE Day 15 Page 21

^{[note: 372]}NE Day 15 Page 21

^{[note: 373]}NE Day 15 Page 21-22

^{[note: 374]}NE Day 15 Page 24

^{[note: 375]}NE Day 12 Page 16

^{[note: 376]}NE Day 12 Page 16

^{[note: 377]}NE Day 12 Page 16

^{[note: 378]}NE Day 12 Page 16

^{[note: 379]}NE Day 12 Page 17

^{[note: 380]}NE Day 12 Page 17; Day 15 Page 36

^{[note: 381]}NE Day 12 Page 17

^{[note: 382]}NE Day 12 Page 17

^{[note: 383]}NE Day 12 Page 17

^{[note: 384]}NE Day 13 Page 66

^{[note: 385]}NE Day 12 Page 18

^{[note: 386]}Area marked as D in Exhibit P6

^{[note: 387]}NE Day 12 Page 24; see 03.35.02 to 03.35.19 in P3

^{[note: 388]}NE Day 12 Page 24

^{[note: 389]}NE Day 12 Page 26

^{[note: 390]}NE Day 15 Page 30-31

^{[note: 391]}NE Day 14 Page 4-5; see 03.35.07 to 03.35.38 in P3

^{[note: 392]}NE Day 14 Page 7-8

^{[note: 393]}NE Day 12 Page 32-33; Day 14 Page 8

^{[note: 394]}NE Day 12 Page 36

^{[note: 395]}NE Day 14 Page 14

^{[note: 396]}NE Day 12 Page 36

^{[note: 397]}NE Day 13 Page 30; Day 14 Page 9

^{[note: 398]}NE Day 12 Page 36; Day 14 Page 12

^{[note: 399]}NE Day 14 Page 12

^{[note: 400]}NE Day 12 Page 32-33, 36-37; Day 14 Page 16

^{[note: 401]}NE Day 14 Page 15

^{[note: 402]}NE Day 12 Page 28-29; see 03.44.07 to 03.44.20 in P3

^{[note: 403]}NE Day 12 Page 28-29

^{[note: 404]}NE Day 12 Page 29; see 03.45.01 in P3

^{[note: 405]}NE Day 12 Page 29; Day 14 Page 19; see 03.44.49 to 03.45.00 in P3

^{[note: 406]}NE Day 12 Page 29

^{[note: 407]}NE Day 12 Page 29

^{[note: 408]}NE Day 12 Page 34; see 03.44.19 in P3

^{[note: 409]}NE Day 12 Page 27-28

^{[note: 410]}NE Day 12 Page 30; see 03.45.45 in P3

^{[note: 411]}NE Day 12 Page 31, 37; Day 14 Page 20; see 03.45.00 to 03.46.16 in P3

^{[note: 412]}NE Day 14 Page 20

^{[note: 413]}NE Day 14 Page 20; see 03.46-09 in P3

^{[note: 414]}NE Day 12 Page 31

^{[note: 415]}NE Day 12 Page 37