Magistrates' Court of Singapore

Public Prosecutor v Paul John Murphy
[2023] SGMC 14

Criminal Law – Offences – Voluntarily causing hurt to public transport worker

Criminal Law – Offences – Negligent act which endangers personal safety of others

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9125/2022.]

20 March 2023

District Judge Ong Chin Rhu:

1 The Accused, Mr Paul John Murphy, claimed trial to two charges under section 336(b) and section 323 of the Penal Code (Cap 224, 2008 Revised Edition) (“PC”) respectively. The charges alleged that the Accused had opened the door of a taxi when there was a moving vehicle on the adjacent lane, and subsequently caused hurt to the taxi driver.

2 At the conclusion of the trial, I found the Accused guilty and convicted him on both charges. I sentenced him to 8 weeks’ imprisonment and a fine of $1,000 (in default, 1 week’s imprisonment). The Accused, being dissatisfied with his conviction and sentence, has filed an appeal. He has paid the fine of $1,000 and is currently on bail pending the hearing of his appeal.

3 I had provided brief oral grounds at the conclusion of the trial to explain some of my findings and my decision on the charges.[note: 1] I shall elaborate on my reasons for conviction and sentence in these grounds.

The Charges

4 The details of the two charges on which the Accused was convicted were as follows:

MCN-901955-2018 (“first charge”)

You, […] are charged that you, on 2 March 2018, at about 10.30pm, around the exit of Central Expressway into Outram Road, Singapore, did voluntarily cause hurt to one Lee Chien Chyen Elgin, to wit, by hitting the said Lee Chien Chyen Elgin on his arm, causing him to suffer a left shoulder dislocation, and you have thereby committed an offence punishable under Section 323 of the Penal Code (Chapter 224, 2008 Revised Edition).

MCN-901956-2018 (“second charge”)

You, […] are charged that you, on 2 March 2018, at about 10.30pm, around the exit of Central Expressway into Outram Road, Singapore, did act so negligently as to endanger the personal safety of others, to wit, by opening the left rear door of the stationary motor taxi SHD 1195Z when there was a moving vehicle on the lane to the left of the said motor taxi, and you have thereby committed an offence punishable under Section 336(b) of the Penal Code (Chapter 224, 2008 Revised Edition).

(emphasis added)

5 I should highlight that, at the start of the trial, the second charge was originally framed as follows under section 336(a) of the PC (“original second charge”):

You, […] are charged that you, on 2 March 2018, at about 10.30pm, around the exit of Central Expressway into Outram Road, Singapore, did act so rashly as to endanger the personal safety of others, to wit, by opening the left rear door of the stationary motor taxi SHD 1195Z when there were other moving vehicles on the lane to the left of the said motor taxi, and you have thereby committed an offence punishable under Section 336(a) of the Penal Code (Chapter 224, 2008 Revised Edition).

(emphasis added)

6 At the close of the defence’s case, and as explained in my brief oral judgment, I found the evidence produced before the Court in support of the original second charge to be insufficient to establish rashness on the part of the Accused (i.e. the original charge was evidentially deficient). I therefore exercised my discretion under section 128 of the Criminal Procedure Code (“CPC”) to amend the charge to one for negligence under section 336(b) of the PC.[note: 2]

Undisputed facts and issues at trial

Agreed and undisputed facts

7 The prosecution and defence had agreed to a Statement of Agreed Facts (Exhibit PS1) for the purposes of the trial. I shall broadly adopt the contents of PS1 in summarising and setting out the background and undisputed facts in this case.

The parties involved

8 It was not disputed that the Accused was involved in an incident with Mr Lee Chien Chyen Elgin (PW1, “Elgin”) which gave rise to the two charges against him. At the material time, Elgin was working as a taxi driver and was driving motor taxi with registration number SHD 1195Z (“the taxi”).

The incident

9 On 2 March 2018, at about 10.03 pm, the Accused made a booking for a car via the Grab application to pick him up from the Singapore Recreation Club (“SRC”) and to send him to his home at 131C Kim Tian Road.

10 Shortly after, Elgin accepted the booking and picked up the Accused from the SRC. The Accused sat on the left rear passenger seat after boarding the taxi. Elgin then drove towards 131C Kim Tian Road.

11 At around 10.30pm, while exiting the Central Expressway (“CTE”) and turning into Outram Road, the Accused and Elgin got into a dispute. In relation to the second charge, it was not disputed that the incident took place when the taxi stopped before the traffic light junction at the exit of the CTE into Outram Road, around the area marked “X incident” in the Google Map in Exhibit P7.[note: 3] It was also not disputed that the Accused had opened the rear left door of the taxi a few seconds after the taxi had come to a stop and that he had not checked his surroundings before doing so. In connection to the first charge, it was undisputed that in the midst of the altercation within the taxi following the door opening incident, the Accused had stretched out his right arm towards Elgin resulting in physical contact with Elgin’s raised left arm.

Post-Incident

12 On the same night, Elgin registered at the Accident & Emergency Department of Mount Alvernia Hospital (“MAH”) at 11.30 pm. He was seen shortly thereafter by Dr Raymond Ong Swee Seng (PW5, “Dr Ong”) and subsequently by Dr Teo Yee Hong (PW4, “Dr Teo”) at 2.45 am on 3 March 2018.

13 The following exhibits were admitted into evidence by consent:

(a) Exhibit P1 – medical report dated 21 March 2018 by Dr Teo;

(b) Exhibit P2 – clarification medical report dated 4 September 2018 by Dr Teo;

(c) Exhibit P3 – first information report submitted by MAH on 3 March 2018 at 2.06 am.

(d) Exhibits P4-1 to P4-14 – 14 photographs of the taxi taken by the police on 28 August 2019.

(e) Exhibits P5-1 to P5-19 – 19 photographs of the taxi taken by the police on 5 May 2020.

14 In P1, Dr Teo stated that Elgin did not have laceration or bruising. However, Elgin’s left shoulder was found to be clinically dislocated, and that MRI findings were consistent with a recent left shoulder traumatic dislocation. Dr Teo also stated that after he performed a successful closed reduction, Elgin was discharged on 3 March 2018 and was granted hospitalisation leave from 3 to 20 March 2018.

The issues of fact at trial

15 In relation to the original second charge, the prosecution’s case was that the Accused had acted rashly by opening the rear left door of the taxi, while it had stopped at the traffic junction, without checking that it was safe to do so. Before the original second charge was amended by the Court, the defence’s contention was that the Accused had fallen asleep in the taxi and had either:

(a) tried to open the door when he felt the taxi come to a stop and thought in his sleepy state that the taxi had reached his destination;[note: 4] or

(b) opened the taxi door unconsciously while asleep.

16 Following the amendment to the second charge, the defence took the position that the Accused had opened the taxi door unconsciously when he was experiencing confusional arousal, a form of parasomnia or sleep disorder.

17 As for the first charge, the prosecution’s case was that the Accused assaulted Elgin after Elgin had shouted at him to close the taxi door. When Elgin raised his left arm to block a punch from the Accused, it landed on his lower left arm, resulting in a left shoulder dislocation. The defence, on the other hand, alleged that Elgin was the aggressor who turned around, leaned towards the Accused and swung both arms at him. The Accused merely responded by raising his right arm to restrain Elgin. The defence also questioned whether Elgin had suffered the dislocation during the incident and suggested that, even if he did, the dislocation could have been caused “accidentally” when the Accused’s hand came in contact with Elgin’s upper body.

The case for the prosecution

18 The prosecution called six witnesses in support of its case. The evidence of the key prosecution witnesses is summarised below.

The incident

19 Elgin was unable to recognise the Accused in Court.[note: 5] However, as it was an agreed fact that the Accused was Elgin’s passenger at the material time, I shall proceed, in these grounds, to set out Elgin’s evidence on this basis.

20 Elgin testified that after picking the Accused up at the SRC, the journey was initially uneventful. Elgin neither spoke to the Accused nor observed what the Accused was doing in the rear passenger seat. When he reached the traffic light junction at the CTE exit to Outram Road, Elgin stopped his taxi on the second lane from the right as the traffic light was red. [note: 6] Elgin recalled that his taxi was the third vehicle from the front. On the lane to his left, there was one car which had stopped at the same junction.[note: 7]

21 A few seconds later, the Accused suddenly opened the rear left door of the taxi and tried to alight. At that juncture, Elgin noticed that there was an oncoming vehicle on the lane to the left of the taxi which had to swerve to dodge the taxi door.[note: 8]

22 Elgin then shouted loudly at the Accused three times, using expletives, to close the door.[note: 9] After the Accused closed the door, Elgin asked the Accused if he was drunk. The Accused said “yes”. The Accused remarked that he did not know where he was and that he did not recognise his surroundings.[note: 10]

23 When the traffic light turned green, and as the taxi was moving off, Elgin felt the Accused punch him twice on his left upper arm. Elgin asked the Accused why the Accused hit him. The Accused responded that he did not like Elgin’s attitude when Elgin spoke to him.[note: 11]

24 A few seconds later, when the taxi was negotiating a right turn at the junction, Elgin turned to check his left wing-mirror for oncoming vehicles to his left which might cut into his lane. From the corner of his eye, he saw what he thought to be the Accused’s hand coming towards him from the back of the taxi. Elgin raised his left arm to block it and felt a punch on his lower left arm. In Court, Elgin demonstrated that he had turned his torso slightly to the left and raised his left elbow above and behind his left shoulder. His lower left arm was raised above his head and his hand was clenched into a fist.[note: 12]

25 Thereafter, Elgin felt pain and soreness in his arm when he tried to place his hand back on the steering wheel. The pain was different from the transient pain he felt from the first two punches. He also felt that he had no strength in his left arm. As such, he rested his arm on the armrest or an item placed at the middle console of the taxi (as seen in the photograph P5-8) as he felt more comfortable that way.[note: 13]

26 After negotiating the bend, Elgin continued to feel pain in his arm as he tried to straighten the vehicle. At that juncture, he and the Accused were scolding each other. Elgin added that he had decided to “bear it” when the Accused hit him the first time but was very angry after being punched on the second occasion. Elgin stopped and alighted from the vehicle as he was afraid that the Accused might continue to hit him. Elgin then told the Accused to get out of the taxi and that he would not be collecting the Accused’s fare.[note: 14] After the Accused alighted, Elgin boarded his taxi, locked the door and drove away.[note: 15]

Elgin called for help

27 Elgin soon felt that the pain was becoming unbearable and used a walkie-talkie application in his mobile phone to ask for help from his friends, informing them that he was assaulted. Elgin then stopped his taxi at Eng Hoon Street for 30 to 45 minutes as he felt that he could not drive anymore. He therefore requested his friends’ help to park the taxi properly so that he could proceed to see a doctor thereafter.[note: 16]

28 Eventually, Elgin’s friends and fellow taxi drivers Hong Chee Wee Daniel (PW2, “Daniel”) and Chua Tze Boon (PW3, “Vincent”) arrived at the scene. Elgin told them what happened and said that he was feeling pain in his arm. Daniel and Vincent suspected that Elgin was suffering from a dislocation and suggested that he go to consult a Chinese doctor. However, as they could not find one who was available at that hour, Elgin decided to go to the hospital for treatment. He explained that he went to MAH as it was likely to be less crowded than the Singapore General Hospital (“SGH”), even though the latter was close by. Daniel then assisted Elgin to park his taxi and all three of them proceeded to MAH.[note: 17]

29 Daniel testified that he was ferrying passengers when he received a message from Elgin on the Zello application sometime before midnight saying that he was injured and was in pain after a fight with a passenger. Elgin added that he felt pain in his arm and shoulder and could not move. When Daniel arrived at Elgin’s location, he noticed that Elgin was in pain and was resting his left arm on the bonnet of the taxi. Daniel saw that Elgin was wearing his jacket and was perspiring and asked why he did not remove his jacket. Elgin responded that he could not do so as he could not move his arm. Daniel proceeded to help Elgin remove his jacket and Vincent arrived the scene shortly after. Surmising that Elgin had suffered a dislocation and failing to find a Traditional Chinese Medicine practitioner at that hour, it was decided that they would proceed to bring Elgin to MAH as it probably had a shorter queue than SGH.[note: 18]

30 Vincent gave evidence that he was driving his taxi when he heard over the Zello application that Elgin needed help and his arm was in pain. Elgin said that he had a quarrel with a passenger and was unable to park his taxi properly. As Vincent was in the vicinity, he drove to Eng Hoon Street for look for Elgin after dropping his passenger off. On arrival, Vincent saw that Elgin was resting his lower left arm on the bonnet of the taxi. Elgin indicated that his upper left arm was in pain. Daniel also arrived at the scene. After discussion, it was decided that they would send Elgin to MAH. This was because they thought that the waiting time at MAH would be shorter as compared to the public hospitals where it was more crowded.[note: 19]

Events at the hospital

31 After registering at MAH, Elgin was triaged by a nurse and waited for a while before a bed was available. Elgin rested in the hospital bed for some time before he was seen by the doctor. When he woke up, his arm felt better. He was informed by the doctor that a reduction had been performed on his arm.[note: 20]

32 A nurse at the hospital came to enquire with Elgin as to what happened. Elgin told her that he was assaulted and that he wished to make a police report.[note: 21]

33 Daniel recalled that whilst waiting to see the doctor at the hospital, Elgin told them how he was injured. Elgin mentioned that he was engaged in an argument with the passengers in his taxi at the CTE exit at Outram. When Elgin saw his rear seat passenger attempting to punch him, he raised his arm to defend himself and suffered pain and injury as a result. Elgin told them he was hit on his upper left arm close to his left shoulder. According to Daniel, Elgin was seen by a doctor within half an hour and was diagnosed with a dislocation. The doctor also mentioned that this would be a police case.[note: 22]

34 Vincent testified that they waited for 30 to 45 minutes before Elgin was first seen by a nurse and subsequently by a doctor. Thereafter, Elgin went to another room in the hospital where he underwent a procedure to reduce the dislocation. When the procedure was completed, Elgin appeared to be in a semi-conscious state. Vincent and Daniel then left the hospital around 2 to 2.30am for Eng Hoon Street.[note: 23]

35 Dr Ong was an emergency medicine physician serving at the MAH Accident and Emergency Department. Dr Ong testified that the contents of P2 matched the case notes recorded by him when he saw Elgin at MAH. Elgin had communicated with Dr Ong in English and was observed to be able to respond to command as well as provide coherent and appropriate answers to questions being asked. Elgin was in distress and had quite a lot to say. According to Dr Ong, this was normal and expected reaction from someone who was recently assaulted. Dr Ong also confirmed that the police was notified in this case as the nurse in-charge would commence the police report process whenever a patient presented with symptoms indicating self-harm or assault.[note: 24]

36 After conducting history-taking and physical examination, Dr Ong ordered an X-ray to be taken. Based on Elgin’s X-ray, Dr Ong diagnosed him with a left shoulder anterior dislocation. Dr Ong then discussed the treatment options with Elgin, who opted to be admitted. Dr Ong then ordered that intramuscular tramadol (an opioid painkiller) be administered to Elgin and referred the case to Dr Teo.[note: 25]

The medical evidence

37 Dr Teo was an orthopaedic surgeon practicing as a senior consultant in his own private practice as well as serving as Head of Service (Adult Reconstruction) and senior consultant at the Tan Tock Seng Hospital.[note: 26]

38 Dr Teo explained that Elgin sustained an anterior dislocation of his left shoulder. Most commonly, the mechanism of this type of dislocation was by way of abduction, meaning the lateral lifting up of the shoulder such that the arm was raised away from the body, and the application of an external rotation force. A force directed posteriorly (i.e. from the back to towards the front) could technically result in an anterior dislocation but this was less likely.[note: 27] Hence, Dr Teo was of the view that the two punches which Elgin alleged that were thrown at him while he was facing forward were less likely to result in the dislocation than the punch allegedly thrown when Elgin turned around to his left to face the Accused.

39 Further, if the punch had landed directly on the shoulder, it was likely to result in a posterior dislocation rather than an anterior one. While it was possible for a punch to the upper arm above the elbow to result in an anterior dislocation if the arm was raised in an abduction position, such injury would more likely result if the punch was delivered to the volar surface of the lower arm below the elbow when the arm was raised in an abduction position. This was because the punch would add an external rotation force in this scenario. This would be particularly so where the victim’s shoulder blade were stabilised or pushed against the back rest of the driver seat such that the force would be even more effective in producing an anterior dislocation of the shoulder.

40 In a scenario where Elgin had turned and leaned towards the Accused and if the Accused had pushed Elgin’s upper body to fend him off, it was less likely for a dislocation to occur. It would also be unlikely for Elgin to have dislocated his shoulder if he had merely turned his body to the left towards the Accused and swung his left arm, unless there was some grappling where his arm got caught or his arm was held onto, when he turned back to face the front.[note: 28]

41 While Dr Teo was of the view that it was not impossible for the shoulder dislocation to be self-inflicted, it would require quite a lot of force to dislocate a shoulder and it would be painful. Further Elgin’s MRI reported oedema on the bone which meant there was bone contusion and that this was a recent anterior dislocation. In Dr Teo’s view, sufficient force was required to cause the contusion.[note: 29]

42 As for the absence of bruising, Dr Teo was of the view that with an indirect force being applied to the lower arm causing a dislocation of the shoulder, it was very likely that there be no bruising observed over the lower arm.[note: 30]

43 Dr Teo added that it would be difficult for a person with a dislocated shoulder to drive a car due to the pain. Immobilisation of the shoulder by bending the elbow and holding the elbow and as close to the body as possible would help to reduce the pain. It would have been difficult for Elgin to hold a steering wheel unless he had something supporting his elbow. However, even that would not be safe and Elgin would have been in sufficient pain not to be able to continue driving.[note: 31]

44 When Dr Teo was shown the report of the defence’s expert, Dr Chan Beng Kuen (DW2, “Dr Chan”) (Exhibit D1), Dr Teo agreed with the contents of the report.

The case for the defence

45 At the close of the prosecution’s case, I found that the prosecution had made out a prima facie case against the Accused on the proceeded charges and called upon him to give evidence in his own defence. The Accused elected to testify. He also called Dr Chan, a specialist orthopaedic surgeon, to tender his expert report in D1.

46 After the original second charge was amended by the Court at the close of the defence’s case, the Accused applied for and was granted leave, pursuant to section 283(1) of the CPC, to call an additional witness – Dr David Lau Pang Cheng (DW3, “Dr Lau”), to provide expert evidence in relation to the second charge.

The Accused’s evidence

47 The Accused testified that on 2 March 2018, he was attending a business meeting with a client at the SRC from 7.30pm to 9.30pm. He then booked a Grab taxi to take him home. Although the Accused had consumed alcohol at the SRC, he was not inebriated or tipsy.[note: 32]

48 The Accused recognised Elgin as the taxi driver who picked him up. After boarding the taxi, the Accused buckled up his seatbelt, confirmed his destination with the Accused and rested back into the seat. He then closed his eyes and fell asleep quite quickly as he had a long and tiring week.[note: 33]

49 The Accused was woken up by Elgin shouting at him repeatedly (using vulgarities) to close the door. The taxi was stationary at that time. Having just woken up, the Accused was confused and did not know why Elgin was shouting at him. He saw that his left hand was on the door handle and the taxi door was ajar by a few centimetres. The Accused was not aware that he had opened the door. He assumed that as the taxi stopped, he had awakened and thought that he had reached his destination. The Accused also believed that he opened the door unconsciously while he was asleep. The Accused did not see any cars on the left of the taxi at that juncture. He closed the door immediately and apologised to Elgin.[note: 34]

50 Elgin continued shouting at the Accused using expletives and called the Accused a “foreign bastard”. The Accused was confused since he had already closed the door and did not know why Elgin was looking “very angry”. At this juncture, the taxi was stationary at the point marked with a blue circle in P7.[note: 35]

51 The Accused apologised again but Elgin appeared to get more agitated. With the taxi remaining stationary, Elgin turned his body about 90 degrees towards the Accused while shouting and swearing repeatedly at the Accused. The Accused responded with an expletive, and this incensed Elgin more. Elgin then swung both his arms in the Accused’s direction. The Accused felt threatened and stretched out his right arm to restrain Elgin. The Accused’s palm came into contact with Elgin’s upper left arm. The Accused did not use push Elgin. However, Elgin went back to his seat voluntarily and said to the Accused “Get out of my taxi, you foreign bastard.”[note: 36]

52 Thinking that there was no point for him to stay in the taxi, the Accused thought it was best to leave. He offered to pay for the fare but Elgin refused his money, abused him verbally and spat at him twice (with the sputum hitting the car seat). The Accused unbuckled his seat belt and got out of the taxi carefully as the light had changed and traffic was flowing by that time. Elgin drove off in the taxi and the Accused walked the remaining distance home. Before leaving the taxi, the Accused did not observe Elgin to be in any pain.[note: 37]

53 When the Accused reached home, he was sweaty and tired. He was also in pain as he was suffering from osteoarthritis in his right hip and plantar fasciitis in his left heel. He told his partner about the incident, took a shower and went to bed. Although the Accused’s partner had told him to lodge a report, the Accused was of the view that it was a heated discussion and did not think it was important. In fact, he had “pretty much forgotten about it” the next day.[note: 38]

Dr Lau’s evidence

54 Dr Lau was a consultant specialist ear, nose and throat surgeon.[note: 39] The Accused had consulted Dr Lau on 9 and 17 June 2021 and Dr Lau conducted a full night polysomnography on the Accused on 15 June 2021, at the Accused’s home.[note: 40]

55 Dr Lau prepared a medical report on the Accused dated 28 June 2021 (Exhibit D3). Dr Lau diagnosed the Accused with obstructive sleep apnoea (“OSA”). Dr Lau explained that OSA was a sleep-related breathing disorder that involved a decrease or complete halt in airflow despite an ongoing effort to breathe. Further, assuming that the Accused did not have any significant change in his health, it was highly likely that he had the same condition in March 2018.[note: 41]

56 Dr Lau was of the further opinion that the Accused’s OSA put him at an increased risk of experiencing another type of sleep disorder known as parasomnia. Parasomnia was defined as an undesirable physical event or experience that occurred during the process of falling asleep, during sleep, or during arousal from sleep. Examples would include sleepwalking, performing complex activities such as unbuttoning pyjamas and buttoning them up again, or even eating. The Accused’s reports to Dr Lau of talking in his sleep and history of sleepwalking as a teenager were suggestive of parasomnias in the past.[note: 42]

57 Based on the above as well as information given to Dr Lau concerning the Accused’s behaviour when the taxi came to a standstill at the traffic light and the Accused’s claim that he had no cognition of himself opening the door until the taxi driver shouted at him, Dr Lau was of the view that it was highly likely to be a parasomnia known as confusional arousal.[note: 43] According to Dr Lau, confusional arousal might include simple motor behaviours that occurred without responsiveness to the environment. In the Accused’s case, an action of opening the car door would be a simple motor movement.[note: 44] Dr Lau added that the cause of such behaviour was not fully understood. Put simply, there was an overlap between wakefulness and sleep (particularly deep sleep) and the person in this condition would be trying to wake up but still asleep and unaware of his surroundings.[note: 45]

58 In his further report dated 5 August 2021 (Exhibit D4), Dr Lau added that if the Accused had been consuming alcohol before boarding the taxi, this could have been a factor in precipitating parasomnia. Dr Lau explained that alcohol was recognised to be a trigger for parasomnias. Firstly, it might make a person fall deeper into sleep and secondly, it increased the likelihood of OSA. In this case, the Accused had consumed alcohol prior to boarding the taxi. In addition, the Accused had OSA, a history suggestive of parasomnia and was in an unfamiliar environment which might increase the likelihood of confusional arousal as sleep could be less stable. Thus, the Accused’s sleep overall would be a little fragmented and that would increase the risk of developing or precipitating parasomnia.[note: 46] When asked to assign weight to the factors affecting stability of sleep, Dr Lau commented that it was almost impossible to do so. However, Dr Lau added that OSA was a more recognised factor amongst the rest and might be considered to be of the highest weight. Second would be the possible history of parasomnias based on what was reported by the Accused. The other two factors would rank equally in third place.[note: 47]

Analysis of the evidence and the Court’s findings

The second charge

59 In setting out my analysis of the evidence and the reasons for my findings, I shall begin with the second charge as it relates to the earlier incident in the taxi.

60 Most of the facts relating to the second charge were undisputed. Firstly, both the prosecution and defence agreed that the incident took place when the taxi stopped before the traffic light junction at the exit of the CTE into Outram Road. Secondly, Elgin’s evidence that the taxi was the third vehicle from the front in the second lane from the right, and that only one car had stopped in the lane to its left at that time, was not controverted by any evidence led by the defence. Thirdly, it was not disputed that at the material time, the Accused was seated at the rear left passenger seat and he had opened the rear left door of the taxi a few seconds after the taxi came to a stop. Finally, it was not disputed that before opening the taxi door, the Accused had not checked that it was safe to do so.

61 The defence relied on the following contentions to argue that the Accused was not guilty of acting so negligently as to endanger the personal safety of others as alleged in the second charge:

(a) the Accused had only opened the door by a few centimetres;

(b) there was no moving vehicle on the lane to the left of the taxi which had to take evasive action; and

(c) the Accused had opened the taxi door unconsciously.

62 I shall begin by dealing with first two strands of the defence’s case as they relate to the same element in the charge of endangering the personal safety of others.

The Accused’s actions did endanger the personal safety of others

63 The Accused gave evidence that he had merely opened the door of the taxi by a few centimetres and challenged Elgin’s testimony that an oncoming vehicle in the adjacent lane had to swerve to avoid a collision.

64 The defence submitted that it was “odd” that according to Elgin’s testimony, the taxi was stationary at the traffic light junction when another car was moving. Having scrutinised the evidence given by Elgin, I disagreed that there was anything anomalous about Elgin’s testimony in this regard. Elgin’s evidence was that the taxi had stopped behind two other vehicles in his lane, whereas there was only one stationary vehicle in the lane to his left. The defence did not produce any evidence to directly contradict Elgin’s account in this regard. Based on Elgin’s description, the single stationary vehicle in the lane to the left would have stopped at the same junction ahead of the taxi, leaving room for other vehicles to drive up behind it. Hence, it was entirely possible for another vehicle to be driving pass the taxi along the lane to the left in the direction of the traffic junction, when the taxi door was opened by the Accused.

65 Further, while the Accused testified that he did not see any vehicles to his left after Elgin had shouted at him and he realised that his hand was on the door handle, this did not render Elgin’s testimony untrue. This was because Elgin’s evidence regarding an oncoming vehicle was in relation to an earlier point of time when the Accused was opening the taxi door and not after Elgin had shouted at him. Since it was undisputed that the Accused had not checked his surroundings before opening the taxi door, the Accused was clearly not in a position to contradict Elgin’s evidence in this regard.

66 The defence also pointed out that Elgin did not mention the “near collision” to Daniel, Vincent or Dr Ong and submitted that he was clearly exaggerating and lying about this. Having studied the evidence in this regard, I disagreed with the defence that this indicated that Elgin was untruthful. In my view, there was nothing suspicious about Elgin not informing his friends or Dr Ong about the evasive action taken by the on-coming vehicle as this was not directly linked to the injury for which he was seeking help from his friends and receiving treatment at the hospital.

67 I also found that the Accused’s version, that he had merely opened the taxi door a little, did not sit well with the uncontroverted evidence that Elgin started shouting at him repeatedly to close the door. Given that the taxi ride had been uneventful thus far, Elgin’s version that the Accused had opened the door and tried to alight would better explain his alarm and sudden outburst. Conversely, had the Accused merely opened the door a crack, it would have been inexplicable for Elgin to have reacted so strongly. In this connection, it was also interesting to note that the Accused’s evidence during examination-in-chief, that he thought he had reached his destination and had opened the door so as to swing his leg out to alight from the taxi, dovetailed Elgin’s description of his actions:

Q	And the 2nd charge that you face is that you acted rashly by opening the left rear door when there were moving vehicles on the lane to the left of the motor vehicle---motor taxi. Did you open the taxi door?
A	Uh---uh, yes, I must have done, yah.
Q	Such that it disrupted the flow of traffic?
A	Uh, I didn’t see any---any cars on the left-hand side.
Q	And why did you open the door?
A	Um, I, uh---I think I assumed that---as we stopped and I woke, I thought I’d reached the destination.
Q	And when you opened the door, you thought that you had the destination, did you open it so that you intended to alight from the taxi?
A	Uh, no, but my---uh, ma---my---my practice is that, um, I tend to, uh---to string my legs out, and, um---and take my money out of my pocket to pay, so I---I---I normally---that---that’s my sort of modus operandi. My---I get my legs out and then get my money out of my pocket and pay the taxi. So that’s quite---sort of a normal thing.
Court:	Could I clarify the answer please, Mr. Murphy? You said that---the question was, when you opened the door and--- thinking that you reached your des---destination, did you intend to open the door so that you can alight?
Witness:	Oh.
Court:	And your answer was “No”, but---
Witness:	Yah.
Court:	you also said that your practice is to swing your legs out. So I thought---
Witness:	Yes.
Court:	then you open to swing your legs out so that you can pay and alight. Is that correct?
Witness:	Correct. Yes.
Court:	I see.

68 Based on the above, I accepted Elgin’s evidence and found as a fact that the Accused had opened the taxi door to disembark from the taxi and this resulted in an oncoming vehicle on the lane to the left of the taxi having to swerve to avoid a collision. Hence, the Accused actions did endanger the personal safety of others.

The Accused had opened the taxi door consciously

69 I turn to consider the main plank of the defence’s case, which was that the Accused had opened the taxi door unconsciously and therefore should not be held liable for his actions. The defence called Dr Lau as an additional witness to give evidence in support of this contention.

70 Having carefully scrutinised Dr Lau’s evidence, I agreed with the prosecution’s observation that Dr Lau’s opinion that the Accused’s act of opening the taxi door was a parasomnia, was premised on the truth of the Accused’s account to have done so unconsciously, without being cognisant of his actions. In other words, Dr Lau had provided his medical opinion to explain the Accused’s claim to have opened the taxi door while asleep, not to test and discern if his claim was true. It was pertinent to note that despite knowing that the Accused faced a criminal charge in relation to his opening the taxi door, Dr Lau did not take any steps to guard against the possibility of the Accused lying to him, but had unquestioningly listened to the Accused’s story as he told it. Concerningly, there was no evidence that Dr Lau was made aware of the other version given by the Accused in Court (as well as put to Elgin by the defence) that the Accused had opened the taxi door as he thought that he had reached his destination.

71 During the trial, Dr Lau agreed that if a patient were to report that he had done an act in his sleep unconsciously, and the act took place within close proximity, Dr Lau would conclude that parasomnia was a distinct possibility:

Q So, am I right to say that, you know, if a patient comes to you and tells you that he had done something in his sleep,---

A Mmm hmm.

Q and wasn’t conscious about what he was doing,---

A Mmm hmm.

Q it doesn’t quite matter what he did, so long as, you know, it’s something in his vicinity, your conclusion will be it is likely that it was parasomnia that caused it?

A I take it a distinct possibility, yes, yes.

Q Now, at the time you prepared your reports, you understood that Mr. Murphy was facing a criminal charge in relation to his behaviour, yes?

A Yes.

Q And you must have recognised that it may be to his advantage---

A Mmm hmm.

Q to lie to you to obtain a favourable report, yes?

A Uh, it’s---it is a possibility.

Q Did you take any precautions to guard against this possibility?

A Uh, I think this is, um, it’s not possible to guard totally against it. Um, but I---I listened to his story as he told it and, uh---uh, and---and---and it seemed to fit into---into that category.

72 Further, Dr Lau’s opinion that the Accused had parasomnia when he opened the taxi door was also partly based on the Accused’s self-reported history of talking in his sleep as well as sleep-walking as a teenager. Once again, there was no evidence of Dr Lau taking any steps to verify this. In light of the foregoing, I agreed with the prosecution’s submission that Dr Lau’s opinion ought to be treated with circumspection.

73 I now turn to examine the Accused’s claim that he had opened the taxi door unconsciously. As alluded to earlier in these grounds, the Accused had given two different versions in Court on how he came to open the taxi door. Firstly, the Accused testified that he was not aware of having opened the door. He only realised that he had done so when he heard Elgin shouting at him and found his hand on the door handle with the door ajar. Secondly, the Accused testified that when the taxi stopped, he woke up and thought that he had reached his destination. He therefore opened the door so that he could (as per his usual practice) swing his legs out, pay the fare and alight from the taxi.[note: 48]

74 In considering which version to accept, I noted that the Accused’s claim to have opened the taxi door unconsciously was directly contradicted by the defence’s case put to Elgin by his counsel. The defence had specifically put to Elgin that when the Accused felt the taxi come to a stop at the CTE exit at Outram Road, he thought in his sleepy state that it had reached his destination and that was why he attempted to open the door:

Q	My instructions are also that, when he tried to open the door he had been sleeping before that in your taxi and when he felt the taxi coming to a stop at that CTE Outram Road Exit, he talked in his sleepy state that the taxi had reached his destination and that’s why he attempted to open the door.
A	Wha---why---why is the Learned Counsel telling me this?
Q	No.
Court:	The question is whether you agree, disagree or you don’t know. As per one que---Counsel is putting questions to you this is because it is Counsel’s duty to put across Mr. Murphy, the accused person’s position to you so to allow you an opportunity to agree, disagree, or tell us otherwise regarding this position.
A	I do not know.

75 To me, it was also telling that having testified to both versions in his examination-in-chief,[note: 49] the Accused insisted, during cross-examination, that he did not know that they were contradictory.[note: 50] In my view, the Accused had stubbornly denied the clear conflicts in his evidence as he recognised they were irreconcilable and wanted to avoid being asked to explain them. Further, as the inconsistencies related to a material fact in issue, they reinforced the lack of credibility on the Accused’s part.

76 Having carefully considered the totality of the evidence, I preferred the Accused’s version that he had opened the taxi door after waking up from his sleep and mistakenly thought that he had reached his destination. This was not only consistent with the case put to Elgin by the defence but also offered a plausible explanation as to why the Accused would open the door in the middle of the road. In my view, that the Accused had wrongly assumed that he had reached his destination also accorded with Elgin’s testimony that the Accused had subsequently remarked that he did not know where he was and that he did not recognise his surroundings. This was consonant with the Accused realising belatedly that he had not arrived at home after all. Although the Accused denied having said that, having carefully considered the evidence, I accepted Elgin’s testimony in this regard as there was really no reason for Elgin to have made this up.

77 Based on my findings of fact that the Accused had opened the taxi door thinking that he had reached his destination, his defence that he had done so unconsciously could no longer stand. Indeed, when this version was put to Dr Lau during cross-examination, Dr Lau was of the view that under these circumstances, the opening of the taxi door would have been a conscious act on the part of the Accused.[note: 51]

The Accused had acted negligently

78 I next considered whether the Accused’s action of opening the taxi door amounted to a negligent act. In this regard, both parties were in agreement that the standard for negligence was that set out in the case of PP v Hue An Li [2014] 4 SLR 661 at [43] and [45]:

43 … The most commonly-invoked standard for negligence is that of the reasonable person: ie, negligence is regarded as the omission to do something which a reasonable person would do, or the doing of something which a reasonable person would not do (see Blyth v The Co of Proprietors of the Birmingham Water Works [1856] EngR 223; (1865) 11 Ex 781 at 784).

…

45 In our judgment, awareness of the potential risks that might arise from one’s conduct ought, in general, to be the dividing line between negligence and rashness. For both negligence and rashness the offender would have fallen below the requisite objective standard of the reasonable person. The harsher sentencing regime for rashness is justified on the basis that the offender was actually advertent to the potential risks which might arise from his conduct, but proceeded anyway despite such advertence.

79 In my view, a reasonable person would not open the door of a vehicle which had stopped in the middle of the road without first checking that it was safe to do so. Based on my finding of fact that the Accused had consciously opened the taxi door when he assumed that he had reached his destination, and given that it was undisputed that the Accused did not check before doing so, I found that the Accused’s actions had fallen short of the standard of a reasonable man and that this amounted to a negligent act on the Accused’s part.

The first charge

80 I now turn to consider the first charge. In this regard, it was not disputed that during the altercation within the taxi following the door opening incident, the Accused had stretched out his right arm towards Elgin resulting in physical contact with Elgin’s raised left arm. The rest of the details, however, were highly contentious, with the Accused and Elgin giving disparate accounts of the incident and accusing the other of being the aggressor. The defence also questioned whether Elgin had suffered the dislocation during the incident.

Elgin had suffered the left shoulder dislocation during the incident

81 I shall first deal with the issue as to whether Elgin had suffered the left shoulder dislocation during his altercation with the Accused.

82 Elgin’s evidence was that he was injured during the incident in the taxi and suffered pain in his left arm as a result. His evidence was buttressed by the testimony of Daniel and Vincent that sometime around 10 to 11 pm on the night of the incident, Elgin had asked for help over the walkie-talkie application, saying that he had a run-in with a passenger and that his arm was hurt. When they arrived at Eng Hoon Street, Daniel and Vincent saw that Elgin was in pain and was leaning against the taxi with his left arm bent and resting on the bonnet.

83 During the trial, the defence alluded to the possibility that Elgin’s shoulder dislocation did not occur during the incident in the taxi.[note: 52] The Accused’s case was that he did not observe Elgin to be in any pain before he disembarked from the taxi and the defence had put to Elgin that it was therefore questionable whether he had dislocated his left shoulder during the incident with the Accused. The defence also pointed out that if Elgin’s shoulder were dislocated by the Accused during the incident, it was odd and disturbing why neither he, Daniel nor Vincent called for an ambulance to convey him to the hospital. The defence further argued that if Elgin were indeed injured with a dislocated shoulder, he would have rushed to SGH which was nearby, rather than waited for his friends at Eng Hoon Street and sought treatment thereafter at MAH which was some distance away.

84 Having carefully considered the defence’s contentions, I did not agree that the facts highlighted by the defence indicated that Elgin was not injured during his encounter with the Accused in the taxi. During cross-examination, Elgin had explained that after stopping his taxi at Eng Hoon Street, his first thought was to ask for help to shift the taxi into a parking lot. Additionally, he was not sure what was wrong with his left arm and initially thought of seeking treatment at a Chinese doctor. Although Elgin did consider calling for an ambulance after Daniel and Vincent had arrived, he was informed that it would likely take him to SGH where the waiting time was expected to be long. As such, he eventually decided to seek treatment at MAH where the wait should be shorter.[note: 53] When questioned as to why they did not call for an ambulance to convey Elgin to SGH, Daniel explained that he did not deem it necessary to do so as Elgin was mobile and the injury was not so serious as to be considered an emergency.[note: 54] Vincent testified that since they were able to send Elgin to the hospital using their vehicles, he did not think of calling an ambulance [note: 55] Having carefully considered the explanations given by the three witnesses, I found that there was really nothing illogical or unreasonable for them to have decided to convey Elgin to MAH for treatment instead of calling for an ambulance or sending him to SGH.

85 Indeed, the agreed facts, taken together with the objective evidence, showed that Elgin suffered a dislocation in his left arm sometime between 10.30pm, when the taxi came to a stop at the traffic light junction before the entire incident unfolded, and 11.30pm, when Elgin registered at MAH for treatment. Given that MAH was, as pointed out by the defence, further from the scene of the incident than SGH, it was highly improbable for Elgin to have sustained the shoulder dislocation (whether self-inflicted or otherwise), during the short window of time between the Accused disembarking from the taxi and Elgin’s arrival at MAH.

86 Pertinently, both the prosecution and defence experts agreed that it was very unlikely for Elgin to have dislocated his own shoulder. Thus, any suggestion that the injury was self-inflicted was, to my mind, unsupported by any factual or medical evidence. Indeed, if Elgin had wanted to fake an injury just to trump up false allegations that he was assaulted by the Accused, it would have been far easier to do so with a simple injury such as a bruise.

87 Following from the above analysis, I found as a fact that Elgin had sustained the left shoulder dislocation during the incident with the Accused in the taxi,

The Accused had caused the left shoulder dislocation by punching Elgin on his lower left arm

88 I next turn to examine the two divergent accounts of how the events in the taxi unfolded and how Elgin sustained his injury.

89 To recapitulate, the prosecution’s case was that the Accused was trying to assault Elgin and when Elgin raised his left arm to block the blow, he was hit on his lower left arm, resulting in the left shoulder dislocation. The defence, on the other hand, alleged that Elgin was the aggressor who turned around and swung both arms at the Accused. The Accused merely responded by raising his right arm to restrain Elgin, resulting in a “coming together” with Elgin’s upper left arm. The defence’s case was that the Accused did not use force to push Elgin during their physical contact but the latter had voluntarily gone back into his seat. Thus, the defence suggested that even if Elgin sustained the shoulder dislocation during the incident, it could have been caused “accidentally” during the coming together of the Accused’s hand with Elgin’s upper body.

90 In Court, Elgin was clear and unwavering in his evidence that after the door opening incident, the Accused had punched him twice on his upper left arm just as his taxi was moving off after the traffic light turned green. He also steadfastly maintained that when the taxi was negotiating a right turn at the junction, he saw the Accused’s hand coming towards him from the back of the taxi and was punched on his lower left arm when he raised it to block the blow. Having carefully reviewed the evidence, I agreed with the prosecution’s submission that Elgin’s account was materially corroborated by the medical evidence as well as the testimonies of Daniel and Vincent.

91 Given the vastly different versions given by the Accused and Elgin of the events in the taxi, it was unsurprising that the defence launched a vigorous challenge on Elgin’s credibility as a witness and subjected his evidence to intensive cross-examination and detailed scrutiny.

92 In their submissions, the defence urged the Court to accept the Accused’s version that Elgin was the aggressor and disbelieve Elgin’s testimony that the Accused had punched him thrice. The defence raised the following points in support of their argument that Elgin was not a credible witness.

93 Firstly, the defence highlighted Elgin’s reaction to the alleged assault by the Accused and argued that it was “senseless” and defied logic. The defence submitted that after the Accused had allegedly punched Elgin twice on his left upper arm, it was “extremely odd” for Elgin to merely ask the Accused why the latter had assaulted him. The defence contended that if Elgin had been subjected to violence by the Accused, the “normal” behaviour would have been for him to either call the police or driven to the nearest police station. According to the defence, Elgin’s failure to do so raised the irresistible inference that he was the aggressor instead. The defence also argued that Daniel’s explanations as to why he also did not call for the police “smacked of absurdity”.

94 During his testimony, Elgin had candidly admitted that he had called the police previously when a passenger refused to pay the fare but simply did not think of doing so after his encounter with the Accused. Elgin explained that as his arm in pain, his priority was to tend to his injury at the hospital.[note: 56] Daniel also testified that when he was informed that Elgin was injured, the most important thing, to him, was to attend to the injury. Additionally, he did not have details of the incident and, as such, did not call for the police.[note: 57]

95 Having carefully considered the explanations given by Elgin and Daniel, I did not find it at all abnormal or absurd for them not to have called for the police at the first instance. To my mind, there was nothing unreasonable or illogical for them to focus on attending to Elgin’s injury which was causing him considerable pain and discomfort. Ironically, if the defence’s case were true that Elgin had concocted a false account of what allegedly happened in the taxi to wrongfully implicate the Accused because he was afraid that action would be taken against him if the truth came out that he had verbally abused and behaved aggressively towards the Accused,[note: 58] there would have been even greater incentive for Elgin to have rushed to make a report to paint himself as the victim before the Accused could complain against him. Hence, in my view, the fact that Elgin did not call the police immediately would not necessarily imply that his evidence was false.

96 In this connection, it was also pertinent to note that a police report was indeed lodged about the assault on Elgin within a few hours of the incident. Elgin testified that at the hospital, he was asked by a nurse if he would like to lodge a report and he said yes. This was borne out by the police report lodged on 3 March 2018 at 2.06 am by the hospital (P3).

97 Next, the defence highlighted the following discrepancies in Elgin’s evidence:

(a) Elgin had flip-flopped in his evidence as to whether he used other vulgarities on the Accused;

(b) Elgin was inconsistent in his testimony on whether the taxi had moved off when he was punched twice by the Accused; and

(c) Elgin was inconsistent as to whether he called his friends over the walkie-talkie before or after he stopped at Eng Hoon Street.

The defence argued that these contradictions indicated Elgin’s willingness to change his story to suit the evidence and had no hesitation to change his version.

98 With regard to the issue concerning the use of vulgarities, Elgin had explained that it was an error on his part when he spoke too hastily in Court concerning the words he uttered when asking the Accused if the latter was drunk. He clarified that he did not use vulgarities at that instance.[note: 59] As for the other two inconsistencies, I noted that they each concerned the precise sequence of events that took place within a very short span of time. Having carefully considered the nature of the discrepancies, I was of the view that they did not at all render Elgin’s credibility suspect or his testimony on the material facts unreliable. As pointed out by the prosecution, the Courts have recognised that “no one can describe the same thing exactly the same way over and over again”[note: 60]. In my view, this was even more so if one were asked to recount events which occurred more than two years ago.

99 The defence then pointed to Elgin’s evidence that he was checking the left wing-mirror of the taxi when turning right at the bend when he saw from the corner of his eye a shadow of something coming at him. The defence submitted that his reason for checking his left wing-mirror was “ridiculous”. In Court, Elgin explained that he had experienced instances where vehicles encroached into his lane suddenly. Thus, while he agreed that he should be checking his blind spot on the right while turning right, it was his habit to also check his left wing-mirror for vehicles making a right turn at the last minute. [note: 61] To my mind, there was nothing irrational or ludicrous concerning Elgin’s practice of checking for vehicles to his left while making a right turn. In my view, this was entirely in keeping with the duty of drivers to keep a proper lookout at all times.

100 The defence next highlighted that when Elgin was shown the photographs in P4 which indicated that there was no armrest in the taxi between the driver and front passenger seat, he vacillated in his evidence concerning what he rested his left arm on. The defence submitted that it was obvious that Elgin was an unreliable witness who was prone to exaggerating and concocting evidence to explain inconsistencies and contradictions in his testimony.

101 In considering the defence’s submissions, it would be useful to have a closer look at Elgin’s testimony in this regard:

Q Pick up P4. Flip through the photographs and tell us where can you see the arm rest that you are referring to?

A I can’t see it.

Q You can’t see because in fact the photos don’t show any arm rest beside the driver seat, correct?

A Well, I cannot remember if there is an arm rest on this car but I remember putting down my hand and resting it on something.

Q […] So, your unequivocal position yesterday more than once when you were asked about this, was that you placed your hand on the armrest. But you are now changing your evidence to say you can’t remember if there was an armrest in this taxi. Agree or disagree you are changing your evidence yet again?

A Well, I can remember that I rested my hand and---I rested my hand on the armrest---I---I am just sticking to this version. So, I---I am not changing my position.

Q So, I’ve shown you the photograph, you have confirmed that this was your taxi and you are not able to see any armrest in this taxi. So, how could you say that you rested your arm on an armrest?

A Well, you can’t see it from this right. The---the right angle from the---the---from the photographs. And for this vehicle, there is a gap in the centre---centre console. So, it cannot be that I’m resting my hand on nothing at all. So, I would say that I have rested my hand on the armrest.

Q Now, thank you for confirming that there is in fact a gap in the centre console. So, that being a gap in the centre console, there could not have been anything armrest or otherwise that you could have rested your left arm on.

A For the car seats, the---they usually would have some sort of For the car seats, the---they usually would have some sort of adjustable armrest where you can either put it up or put it down. I cannot recall whether there is one for this vehicle. I’m---I’m a bit slightly confused. When my hand was fe---when I felt pain in my hand, I did rest my hand and continue to drive one handed. If not---if I had not rest my hand, I would have felt the pain to be rather painful.

Q Now, previously I’m putting to you that you are changing your evidence yet again on this point because you have now been shown to be lying by the photographs which do not show the presence of any armrest, you could have rested your arm on as you claim?

A No. I am a 100% sure that I have rested my hand on something. ^{[note: 62]}

(emphasis added)

102 Having carefully considered Elgin’s evidence, I was not persuaded that Elgin was lying in Court when he initially testified that he had rested his injured left arm on an armrest in the taxi. In my assessment, Elgin’s testimony evinced an honest belief that the taxi had an armrest, as well as genuine confusion when he realised there did not appear to be one. To me, it was apparent that this stemmed from Elgin’s firm and distinct recollection that he had rested his left arm on a form of support within the taxi to ease the pain while he drove with the other arm. During re-examination, Elgin clarified that having driven a number of taxis since he started working as a taxi driver in 2016, he might have mixed them up. He also explained that he could have placed his water bottle at the console between the driver and front passenger’s seat and might even have placed his jacket over it. Thus, he could have supported his injured arm that way.[note: 63] In my view, Elgin’s uncertainty concerning what he had rested his arm upon did not diminish his overall credibility as a witness or detract from the veracity of his evidence concerning the assault.

103 The defence also highlighted various inconsistencies between the evidence given by Elgin and that given by Daniel and Vincent:

(a) Elgin had testified that he told his friends over the walkie-talkie that his passenger had punched him and he needed help to move his car. However, neither Daniel nor Vincent gave evidence concerning this, but testified that Elgin did not tell them how he was injured. Specifically, the defence submitted that Vincent could only recall that Elgin said he was in pain and did not mention an alleged assault.

(b) Daniel testified that at the hospital Elgin said he was punched on the left upper arm, close to the shoulder and nowhere else. This materially contradicted Elgin’s testimony that he was hit on the left lower arm. Further, Vincent’s evidence that he did not know what happened in the taxi because Elgin never told him, materially contradicted Elgin and Daniel’s testimony in this regard.

(c) Daniel testified that Elgin’s taxi was parked at a parking lot along Eng Hoon Street while Elgin’s testimony was that he stopped along the street and Daniel had helped him park the taxi.

(d) There was inconsistency between the three witnesses’ evidence as to whether Vincent or Daniel had arrived at Eng Hoon Street first, who amongst them suggested going to a Chinese doctor and the private hospital, and whether it was Vincent or Daniel who drove to MAH.

104 Having reviewed the evidence, I was of the view that the inconsistencies were the result of human fallibility in observation, retention and recollection. These minor discrepancies did not compromise the overall credibility of the witnesses’ evidence on the material facts in relation to the charges and issues at trial.

105 Finally, the defence referred to the differences between the case history recorded by Dr Ong as set out in P2 and Elgin’s account in Court. These included divergences concerning the number of occasions the Accused attempted to leave the taxi, the number of times Elgin was punched and where Elgin was hit when he raised his arm to block a punch. The defence submitted that these contradictions went directly to the crux of the prosecution’s case, impugned on the general credibility of Elgin and indicated that he was a habitual liar.

106 In my view, the disparities ought to be considered in light of the circumstances and context under which the medical notes were taken. Dr Ong had observed that Elgin was in distress during the consultation and opined that this was normal and expected reaction from someone who was just assaulted. Further, it was not Dr Ong’s practice to record his clinical notes simultaneously while conducting history-taking. Instead, Dr Ong would complete history-taking and physical examination before entering his medical notes. According to Dr Ong, the purpose of history-taking and physical examination was to come to a diagnosis and his primary focus when conducting history-taking was on the severity and type of injury and the appropriate treatment. Thus, it was not Dr Ong’s practice to record what his patients said verbatim, but he would paraphrase and put down the points which would be relevant in making the diagnosis. Dr Ong added that it was not his practice to show his notes to the patient to verify their accuracy.[note: 64]

107 I was of the view that the differences between what was recorded by Dr Ong in his clinical notes and Elgin’s testimony in Court were attributable to the above factors, and hence, did not render Elgin’s testimony in Court concerning how he sustained the dislocation suspect or unreliable. Instead, Dr Ong’s objective observation of Elgin’s distressed state reinforced the latter’s testimony that he was the victim of violence.

108 Turning to the Accused’s testimony, I was unimpressed by his attempt at portraying himself as an innocent victim of a taxi driver’s wrath. During the trial, the Accused was clearly attempting to downplay the degree of his intoxication. The Accused testified that at the business meeting prior to boarding Elgin’s taxi, he drank two small beers and shared a bottle of red wine with his client. However, he claimed that he was totally sober and not inebriated or tipsy in any way.[note: 65] This was not only contradicted by Elgin’s testimony that the Accused answered “yes” when Elgin asked if he was drunk, it also did not sit well with the statement he gave to the police on 19 March 2018 (Exhibit P8) where he stated that he was “probably tipsy”.

109 Additionally, the overall veracity of the Accused’s testimony was, in my view, negatively impacted by the contradictions in his case in relation to the second charge.

110 In fact, the same argument that the defence raised against the prosecution’s witnesses’ failure to lodge a complaint or police report soon after the incident could be made, with equal, if not greater force, against the Accused. As pointed out by the prosecution in their submissions, the Accused claimed to have been subjected to escalating verbal and physical aggression from Elgin, even though he had repeatedly apologised for his mistake of opening the taxi door by a few centimetres. Further, his evidence was that he was spat at and forced to disembark from the taxi in the middle of the road when the light had turned green and traffic was flowing. The Accused also alleged that he was in a lot of pain as a result of having to walk half an hour to get home as he suffered from osteoarthritis and plantar fasciitis. Yet, despite all these, he did not make any report or complaint, not even to the taxi company or Grab, concerning the incident. His explanation that he thought it was just a “heated discussion” and that he had forgotten about it the very next day beggared belief. In my view, the Accused had failed to report the incident simply because he was the aggressor.

111 In discerning which version to accept, I was very much assisted by the expert evidence given by Elgin’s treating doctor, Dr Teo, which remained unchallenged by the defence.

112 Firstly, I agreed with the prosecution’s observation in their submissions that Elgin’s account of the assault, the pain he felt, and his description of what he did to ease the pain dovetailed the expert evidence given subsequently in the trial by Dr Teo. Specifically, Elgin had testified that his pain was eased when he rested his left arm on a form of support in the taxi and this mirrored Dr Teo’s testimony that while seated in a vehicle, the best position to contain the pain would be to have something to support the elbow.[note: 66]

113 Crucially, Dr Teo and the defence’s expert, Dr Chan, were in agreement that an anterior shoulder dislocation most commonly occurred when there was abduction and forceful external rotation of the shoulder.[note: 67] When the details given by Elgin concerning how he had turned to his left and blocked the Accused’s punch with his left lower arm was put to Dr Teo, Dr Teo was of the opinion that this was the most likely manner in which dislocation was caused and added that the external rotation force of the punch would be even more effective in causing an anterior dislocation of the shoulder if Elgin’s shoulder blade was stabilised against the driver’s seat.[note: 68] In my assessment, Dr Teo’s opinion that significant force was required to result in a dislocation and that a blow below the elbow instead of above, when the arm was extended, was even more likely to result in the type of dislocation sustained by Elgin, bolstered the credibility of Elgin’s account concerning the mechanism of the injury.

114 Dr Teo was also specifically asked about the likelihood of dislocation if Elgin had, as the Accused claimed, turned and leaned towards the Accused and the Accused had pushed Elgin’s upper body to fend him off. Dr Teo was of the view that if the Accused were just pushing, it was less likely for a dislocation to occur.[note: 69] In Court, the Accused had expressly denied even exerting force to push Elgin and maintained that it was just a “coming together” of his right palm and Elgin’s left upper arm.[note: 70] In my view, based on Dr Teo’s evidence, the Accused’s insistence that no force was used would render it even less likely to result in a dislocation.

115 Thus, having carefully considered the uncontroverted medical evidence, I found that it was highly corroborative of the fact that the injury was indeed inflicted in the manner as described by Elgin when his raised lower arm was struck by the Accused.

116 Having carefully assessed and analysed the evidence before the Court, I accepted Elgin’s version that the Accused had thrown a punch at him and he was hit in his lower left arm when he raised it to block the punch. I further found that this caused him to suffer a left shoulder dislocation.

117 In conclusion, I find that the prosecution has proven both the first and second charges against the Accused beyond a reasonable doubt. As such I found the Accused guilty and convicted him of the same.

Sentencing

Prescribed Penalties

118 Section 323 of the PC provided that an offender shall be punished with imprisonment for a term which may extend to 2 years, or with fine which may extend to $5000, or with both.

119 The prescribed punishment for an offence under section 336(b) of the PC was imprisonment for a term which may extend to 3 months, or a fine which may extend to $1500, or both.

Antecedents

120 The Accused was untraced.

Prosecution’s Submissions on Sentence

121 The prosecution tendered skeletal sentencing submissions and supplemented this with oral submissions in Court.

The first charge

122 The prosecution sought an imprisonment term of between 8 to 11 weeks for the first charge. In this connection, the prosecution highlighted the following aggravating factors:

(a) the Accused was intoxicated at the time of the offence;

(b) the victim was a public transport worker;

(c) the assault had taken place when the taxi was in motion;

(d) a relatively serious injury was caused.

123 On the other hand, the prosecution also noted that the Accused had made compensation to Elgin.

124 The prosecution then referred to the following sentencing precedents comprising offences under section 323 PC involving public transport workers:

(a) Wong Hoi Len v Public Prosecutor [2009] 1 SLR(R) 115 (“Wong Hoi Len”);

(b) Public Prosecutor v Jan Ber Mangilin Terrones [2018] SGMC 76 (“Jan Ber”);

(c) Public Prosecutor v Chan Siew Yin [2018] SGMC 27 (”Chan Siew Yin”); and

(d) Public Prosecutor v Sundram Peter Soosay [2016] SGMC 3.

125 Based on the sentencing factors in this case and considering that the Accused had claimed trial, the prosecution submitted that the appropriate sentence would be between 8 to 11 weeks’ imprisonment.

The second charge

126 In relation to the second charge, the prosecution submitted that while the act of opening a car door in the middle of the road with a moving vehicle on the left lane was relatively dangerous, no injuries were caused. Further the prosecution accepted that the Accused had committed the offence shortly after waking up and might not have fully appreciate the situation. In view of the above, the prosecution submitted for a fine in the upper range.

Mitigation & Defence’s Submissions on Sentence

127 The defence tendered a written plea in mitigation as well as responded orally to the prosecution’s sentencing submissions.

The first charge

128 In their submission on sentence for the first charge, the defence referred to Low Song Chye v Public Prosecutor and another appeal [2019] SGHC 140; [2019] 5 SLR 526 (“Low Song Chye”) where the High Court set out the two-stage sentencing framework for section 323 PC offences for first offenders who had pleaded guilty. For the first stage of the Low Song Chye framework, the defence submitted that the hurt caused to Elgin was moderate as he was diagnosed only with clinical dislocation of his shoulder and was discharged on the same day with 18 days’ hospitalisation leave. Elgin had also defaulted on his follow up appointment. Thus, it was submitted the present case would be placed in the low range of Band 2 in the Low Song Chye framework.

129 Moving on to the second stage of the Low Song Chye framework, the defence referred to the cases of Public Prosecutor v Lim Liang Huat [2011] SGDC 150 (“Lim Liang Huat”) and Balbir Singh s/o Amar Singh v Public Prosecutor [2010] SGHC 123 (“Balbir Singh”) both of which involved offences under section 323 of the PC committed against public transport workers. The defence submitted that the Accused’s culpability was low as the offence was not pre-meditated and no weapons were used. The assault lasted a short period of time and the injuries suffered by Elgin were minor. The defence also submitted that Elgin had contributed to the assault as he had shouted at the Accused with vulgarities to close the door and stretched out his arms towards the Accused. The defence emphasised that the Accused was not a violent man and the incident happened at the spur of the moment. Hence, the defence submitted that a short custodial sentence of 4 weeks’ imprisonment would be sufficient.

The second charge

130 In relation to the second charge, the defence submitted that no harm was caused as a result of the Accused’s action of opening the door of the taxi. As the Accused was suffering from confusional arousal at the material time and was unaware of his actions, the defence argued that a fine would be appropriate and sufficient.

Other mitigating factors

131 The defence highlighted the personal background of the Accused and that he was the main provider for four children who were still schooling. He was also the main provider for a daughter and her young child who have been diagnosed with Attention Deficit Hyperactive Disorder and Autism respectively.

132 The defence enclosed several testimonials attesting to the Accused’s mild temperament and charitable contributions and pointed out that the Accused had offered to compensate Elgin as early as 21 March 2018 and had eventually made voluntary compensation of $1,832.35 to Elgin.

133 The defence concluded that as this was a one-off incident due to the Accused’s medical condition and submitted that 4 weeks’ imprisonment and a high fine would be appropriate.

Decision on Sentence

Sentencing considerations & principles

134 In relation to the first charge, I agreed with the defence that the sentencing framework in Low Song Chye was applicable. Following the guidance in Loh Song Chye, I first considered the sentencing band applicable and determined where the present case fell within the applicable sentencing range within that band, having regard to the actual harm caused. In this regard, I agreed with the defence that moderate harm was caused in this case and it fell within Band 2 of the framework, with the indicative sentencing range of 4 weeks’ to 6 months’ imprisonment. Based on the harm caused in this case, and bearing in mind that the indicative sentencing range in Low Song Chye was for first time offenders who had pleaded guilty, I determined that the appropriate indicative starting point in this case was 6 weeks’ imprisonment.

135 In Step 2, I turned to consider the appropriate adjustments to the indicative starting point, based on the Accused’s culpability as well as other relevant factors. In this regard, I had considered the defence’s submission that Elgin had contributed to the assault as he had shouted at the Accused, using expletives, to close the taxi door as well as stretched out his arms towards the Accused. I noted that Elgin’s sudden outburst was prompted by the Accused’s negligent act of opening the taxi door. Furthermore, based on my findings of fact, Elgin was not the aggressor during the incident and had merely raised his left arm to block the Accused’s incoming punch. Thus, I could not agree with the defence that Elgin had contributed to assault on him or that the Accused’s culpability was reduced as a result.

136 On the other hand, the Accused had attacked a public transport worker. As noted by the High Court in Wong Hoi Len at [11], public transport workers were regarded as vulnerable victims:

There is little doubt that public transport workers … are more vulnerable to criminal violence than their counterparts in most other professions. They are constantly exposed on the service frontline and, very often, are left to fend for themselves when confronted with difficult and /or unruly passengers. In Duncan Chappell & Vittorio Di Martino, Violence at Work (International Labour Office, 2^nd Ed, 2000) at p 67, the authors observed that, of lone workers, taxi drivers in many places were at the greatest risk of violence”. … The authors also noted that night time was the highest-risk driving period for taxi drivers, and that customer intoxication appeared to play a role in precipitating violence.

137 I agreed with the prosecution that the assault was further aggravated by the fact that the Accused had attacked Elgin when the taxi was in motion. I should add, however, I did not place weight on the fact that the Accused had consumed alcohol before boarding the taxi. This was because it was not entirely clear how inebriated the Accused was and to what extent the Accused’s intoxication had contributed to the assault.

138 In calibrating sentence, I also had regard to the facts raised in mitigation. In the Accused’s favour, I took into account the fact that he had made compensation to Elgin.

139 Balancing all relevant factors in Step 2 of the framework, I applied an appropriate uplift to the 6 weeks’ starting sentence and arrived at 8 weeks’ imprisonment.

140 Next, I tested the sentence against the sentencing precedents cited by both parties, involving first offenders who committed offences under section 323 of the PC against public transport workers. Having carefully studied the sentencing precedents, I agreed with the prosecution’s submissions that the present case was more serious than Jan Ber and Chan Siew Yin where the offenders were sentenced to 6 weeks’ and 4 weeks’ imprisonment respectively. In those two cases, the harm caused to the victims were low – in Jan Ber the victim did not suffer any injuries but experienced slight pain[note: 71] while in Chan Siew Yin, the victim suffered a 2cm laceration and bruising[note: 72]. In contrast, it was not disputed that the harm caused in the present case was in the moderate category. Furthermore, the offenders in both Jan Ber and Chan Siew Yin had pleaded guilty. As the Accused had claimed trial, he could not expect to be accorded the sentencing discount usually given to offenders who had pleaded guilty as a sign of genuine remorse.

141 I had also carefully considered the cases of Lim Liang Huat and Balbir Singh cited by the defence where fines were imposed on offenders who had been convicted of offences under section 323 of the PC committed against public transport workers. Once again, the injuries suffered by the victims in both cases were relatively minor. The victim in Lim Liang Huat suffered a superficial ulcer on his lower lip and signs of haemorrhage over the ulcer side while the victim in the second appeal in Balbir Singh had a laceration over the forehead, left upper thigh wound and tenderness over the left anterior chest wall. Additionally, as highlighted by the defence, the High Court on hearing the appeal in Balbir Singh had found that the offender in the second appeal had reason to apprehend that the victim, who was armed with an umbrella, might use it on him, and caused the injuries during the tussle for control of the umbrella.

Sentences imposed

142 Having carefully deliberated the full facts and circumstances of the case, I sentenced the Accused to 8 weeks’ imprisonment for the first charge.

143 As for the second charge, I agreed with both parties that a high fine would be appropriate and sufficient punishment. Considering that the maximum fine was $1,500, and taking into account the relatively low level of culpability of the Accused and the fact that no damage or injury was caused, I sentenced the Accused to a fine of $1,000 (in default, one week’s imprisonment).

Conclusion

144 The total net sentence was therefore 8 weeks’ imprisonment and a fine of $1,000 (in default, one week’s imprisonment). In my view, this sentence was proportionate to the Accused’s culpability and sufficient for the purpose of deterrence.[Context] [Hide Context]

^{[note: 1]}Notes of Evidence (‘NE’), 7 April 2022, 1/17- 7/10.

^{[note: 2]}NE, 19 May 2021, 1/17-2/30.

^{[note: 3]}NE, 6 January 2021, 29/1-8.

^{[note: 4]}NE, 2 April 2020, 11/23-12/4.

^{[note: 5]}NE, 1 April 2020, 10/24-28; 11/19-27.

^{[note: 6]}NE, 1 April 2020, 11/4-10, 11/28-12/4, 12/10-26; 2 April 2020, 8/28-9/4.

^{[note: 7]}NE, 2 April 2020, 9/10-21, 10/19-11/1.

^{[note: 8]}NE, 1 April 2020, 11/10-11, 12/5-9, 12/27-13/1; 2 April 2020, 10/1-7, 12/5-11.

^{[note: 9]}NE, 1 April 2020, 11/11-12, 13/2-8; 2 April 2020, 19/8-18.

^{[note: 10]}NE, 1 April 2020, 11/12-15, 13/9-27; 2 April 2020, 12/12-13/5, 15/12-16/8.

^{[note: 11]}NE, 1 April 2020, 13/28-14/10, 18/3-26; 2 April 2020, 13/6-14/27, 17/26-19/8.

^{[note: 12]}NE, 1 April 2020, 14/12-17, 14/27-17/6, 17/16-30; 2 April 2020, 20/20-22/10, 22/26-23/20, 24/28-27/7, 28/30-29/1; 5 Jan 2021, 2/7-3/1.

^{[note: 13]}NE, 1 April 2020, 14/17-20, 17/7-15; 2 April 2020, 31/18-33/29, 35/2-38/25; 5 January 2021, 4/15-5/27.

^{[note: 14]}NE, 1 April 2020, 14/20-26.

^{[note: 15]}NE, 1 April 2020, 19/2-10; 2 April 2020, 41/27-45/6.

^{[note: 16]}NE, 1 April 2020, 19/10-20/12; 2 April 2020, 53/5-19, 55/3-21.

^{[note: 17]}NE, 1 April 2020, 20/13-21/11; 2 April 2020, 49/8-26, 54/30-55/2, 56/23-57/9; 5 January 2021, 7/31-8/9.

^{[note: 18]}NE, 5 January 2021, 9/9-11/4, 16/27-22/15, 24/18-.26/27.

^{[note: 19]}NE, 5 January 2021, 43/28-45/7, 46/15-47/14, 51/26-52/2, 56/8-22, 58/18-22.

^{[note: 20]}NE, 1 April 2020, 21/20-29; 2 April 2020, 58/1-23, 59/1-11.

^{[note: 21]}NE, 1 April 2020, 21/29-22/1.

^{[note: 22]}NE, 5 January 2021, 11/21-12/29, 34/1-36/30.

^{[note: 23]}NE, 5 January 2021, 48/24-49/24, 60/15-61/3

^{[note: 24]}NE, 6 January 2021, 3/11-4/4. 6/3-10.

^{[note: 25]}NE, 6 January 2021, 7/7-22, 9/31-10/13, 12/9-32, 14/29-17/2.

^{[note: 26]}Dr Teo’s curriculum vitae is in Exhibit P6.

^{[note: 27]}NE, 5 January 2021, 67/7- 69/24.

^{[note: 28]}NE, 5 January 2021, 69/24-70/20, 71/29-72/11, 75/10-78/29, 87/22-90/7.

^{[note: 29]}NE, 5 January 2021, 71/11-28,73/9-16.

^{[note: 30]}NE, 5 January 2021, 79/12-80/28.

^{[note: 31]}NE, 5 January 2021, 84/27-86/14.

^{[note: 32]}NE, 6 January 2021, 35/23-36/1, 45/18-24, 48/24-49/17.

^{[note: 33]}NE, 6 January 2021, 36/3-27.

^{[note: 34]}NE, 6 January 2021, 38/4-39/3, 51/7-28, 63/27-31, 65/22-66/2.

^{[note: 35]}NE, 6 January 2021, 39/4-18, 39/19-40/14.

^{[note: 36]}NE, 6 January 2021, 40/17-42/17; 44/32-45/13, 52/27-32, 53/18-55/4, 64/29-65/2, 66/9-14.

^{[note: 37]}NE, 6 January 2021, 42/18-43/2, 46/19-21, 55/5-56/9, 60/5-27, 62/5-63/7.

^{[note: 38]}NE, 6 January 2021, 43/3-44/8.

^{[note: 39]}Dr Lau’s curriculum vitae is in Exhibit D3.

^{[note: 40]}NE, 29 November 2021, 7/29-8/15, 9/2-13.

^{[note: 41]}NE, 29 November 2021, 8/20-29, 44/23-45/13.

^{[note: 42]}NE, 29 November 2021, 14/1-16/26, 34/12-35/13.

^{[note: 43]}NE, 29 November 2021, 17/5-19/22.

^{[note: 44]}NE, 29 November 2021, 27/22-28/9.

^{[note: 45]}NE, 29 November 2021, 29/12-23.

^{[note: 46]}NE, 29 November 2021, 20/14-23/31. 29/29-30/17, 30/23-31/18.

^{[note: 47]}NE, 29 November 2021, 31/19-33/5, 36/29-39/6.

^{[note: 48]}NE, 6 January 2021, p 46/29 – 47/2.

^{[note: 49]}NE, 6 January 2021, p 38/30-39/1, 46/22-47/22.

^{[note: 50]}NE, 6 January 2021, p 50/10-51/28.

^{[note: 51]}NE, 29 November 2021, 41/17-42/3

^{[note: 52]}NE, 2 April 2020, 71/12-16.

^{[note: 53]}NE, 2 April 2020, 46/2-50/1.

^{[note: 54]}NE, 5 January 2021, 28/6-30/9.

^{[note: 55]}NE, 5 January 2021, 58/23-59/2.

^{[note: 56]}NE, 2 April 2020, 50/2-53/4; 5 January 2021, 5/28-6/13.

^{[note: 57]}NE, 5 January 2021, 26/28-28/5, 32/23-33/3.

^{[note: 58]}NE, 2 April 2020, 72/11-17.

^{[note: 59]}NE, 2 April 2020, 15/12-16/14.

^{[note: 60]}PP v Singh Kalpanath [1995] 3 SLR(R) 158 at [60].

^{[note: 61]}NE, 2 April 2020, 29/2-30/30; 5 January 2021, 2/7-3/1.

^{[note: 62]}NE, 2 April 2020, 31/18-33/29.

^{[note: 63]}NE, 2 April 2020, 3/3-5/2; 5 January 2021, 4/15-5/27.

^{[note: 64]}NE, 6 January 2021, 4/11-6/2, 6/29-7/22, 19/28-20/9.

^{[note: 65]}NE, 6 January 2021, 45/14-24, 48/19-49/17, 58/12-17.

^{[note: 66]}NE, 5 January 2021, 85/1-86/14.

^{[note: 67]}NE, 5 January 2021, 67/7-22 and D1.

^{[note: 68]}NE, 5 January 2021, 69/15-70/20.

^{[note: 69]}NE, 5 January 2021, 71/29-72/11.

^{[note: 70]}NE, 6 January 2021, 53/12-54/9.

^{[note: 71]}Jan Ber at [11].

^{[note: 72]}Chan Siew Yin at [10].