On 10 June 2020, the Court of Appeal handed down its decision in the case of Dr Wee Teong Boo. It acquitted him of all the charges against him, including that of rape, digital penetration and outrage of modesty.
The Apex Court’s decision became the subject of a lot of heated and passionate discussions, which primarily focused on the Court of Appeal’s finding in relation to the credibility of the complainant and the perception that Dr Wee may have been acquitted “on a technicality”.
However, one important aspect of the judgment that most reports and commentators failed to highlight was what the Court of Appeal had to say in relation to the role of the Prosecution in criminal proceedings. This is a vital finding that goes not just to the heart of the decision in this case, but one that has wide-ranging implications for all current and future criminal proceedings.
In this matter, the Prosecution had failed to discharge two duties — its duty to disclose relevant material and its duty to prove guilt beyond a reasonable doubt. In summary, the objective evidence, the prosecution’s failure and the core tenets of the criminal law tipped the scales of justice in favour of Dr Wee’s acquittal.
For ease of reference, the full judgment can be accessed here.
The Prosecution’s duty of disclosure
One may be forgiven for thinking that the Prosecution’s duty is to convict. This is, however, far from the truth.
The Honourable Chief Justice Sundaresh Menon, who delivered the decision of the Court of Appeal, qualified this by holding that “the Prosecution owes a duty to the court and the public to ensure that only the guilty are convicted” and that it should not endeavour to “secure a conviction at all costs” Menon CJ held that this was consistent with the Prosecution’s overarching duty of fairness.
As part of this duty, the Prosecution is obliged to disclose documentary evidence that can assist the court in its determination of the truth. In essence, the Prosecution is duty-bound to disclose evidence that will help the Court find the truth, even if it may not be favourable to its case. This rule is referred to as the Kadar obligation, following the decision of the apex Court in Muhammad bin Kadar and another v Public Prosecutor .
In a excerpt that is worth reproducing in its entirety, Menon CJ held that the Prosecution duty is as follows:-
The Rape Charge
Dr Wee was charged with rape. Section 375 of the Singapore Penal Code defines rape as the penetration of the vagina with a penis. It is important to note at this juncture that there is a separate offence of digital penetration that contemplates situations where one’s vagina is penetrated using another’s fingers.
Throughout the trial, the complainant gave unequivocal evidence:-
- that she saw Dr Wee’s penis partially inside her vagina; and
- that Dr Wee never inserted his fingers inside her vagina,
Under cross examination, the complainant explicitly ruled out any possibility that what she saw was anything other than Dr Wee’s genitalia and she patently rejected the possibility that it may have been Dr Wee’s finger.
The evidence of Dr Wee’s erectile dysfunction
Prior to the commencement of the trial, the Prosecution had in its possession a medical report about Dr Wee’s erectile dysfunction. This Report was relevant to Dr Wee’s innocence as it goes towards proving that it was physically improbable for Dr Wee to have raped the complainant as he suffered from erectile dysfunction. In other words, the Prosecution had evidence that it may have been physically improbable for Dr Wee to have raped the complainant but it nevertheless proceeded.
The Defence had applied to view this report repeatedly during the pre-trial stage but the Prosecution refused to disclose the report.
The Defence continued to petition for the report to be released during the trial. The Prosecution only released the report to the Defence after Dr Wee had given his evidence.
It could be said that the Prosecution did not just fail to disclose, but actively resisted the disclosure of the report.
The Court did not see any merits to the Prosecution’s argument that the report was not relevant to Dr Wee’s defense and held that the Prosecution failed to discharge its Kadar obligations. The failure to disclose this report prejudiced Dr Wee’s ability to “make an informed choice before the trial as to whether he should pursue the state of his erectile function as an alternative defence”.
This is especially relevant as the complainant’s evidence is simply irreconcilable with the objective evidence in the form of the medical report. A rape, in the manner and form which the complainant described, could not have occurred because it would have been physically impossible for Dr Wee to have done so.
Accordingly, the High Court acquitted Dr Wee of the rape charge. To put things in perspective, if the report was not disclosed, Dr Wee would have likely faced no less than 10 years’ imprisonment.
The Court also drew inferences in relation to the complainant’s credibility based on not just inconsistencies in her testimony but also the objective evidence.
It is especially important to note that the Court did not acquit Dr Wee solely on the basis of inconsistencies of the complainant’s evidence. Rather, the Court grounded its decision on medical evidence that pointed out the physical improbability of the complainant’s allegation.
How the Courts treat the testimony of victims of sexual assault
Contrary to some discussions online, the Court does recognize the proposition that the testimony of victims of sexual assault is not always consistent.
This was most recently elucidated in the Court’s decision in Ariffan where it held that:-
- The Court of Appeal accepted that a victim of sexual assault, especially a youthful one assaulted in a familial context, may not report the offence in a timely manner as there were empirically-supported psychological reasons for delayed reporting, including feelings of shame and fear: at . The fact that there was a delay in reporting by a complainant was not, on its own, reason to disbelieve the complainant and his or her allegations against an accused person; and
- The Court of Appeal also accepted the expert evidence that a victim of sexual assault cannot always be expected to provide a completely similar and full account every time he or she discloses the offence to another person.
The Court in Wee was alive to the fact that victims of sexual assault behave differently. It held at  that it is “well-established that there is no prescribed way in which victims of sexual assault are expected to act.” It cited with approval the following proposition:-
… People react in different ways to sexual abuse and may compartmentalise or rationalise their reactions. A calm, undisturbed disposition may generally incline the court to conclude that no wrong was committed, but it is not necessary for a complainant to be distraught for her to be believed
Although there will always be room for improvement in the Court process for victims of sexual assault, one can be assured that the Court does have a special standard in relation to the testimony of victims of sexual assault. In any case, here there was an objective medical evidence that directly contradicted the complainant’s testimony.
The core principles of criminal law
The trauma that victims of sexual assault may undergo in the process of testifying is undeniable. However, it is something that is also of fundamental importance to the two core principles of criminal law.
First, to secure a conviction, the Prosecution must first prove all elements of an offence beyond a reasonable doubt. This is not a low threshold as the deprivation of life and liberty requires strong justification.
Therefore, if the Prosecution intends to secure a conviction on a charge of digital penetration, it needs to establish that the accused had performed the act intentionally without consent or justification. It is only after the Court is satisfied that the Prosecution has proven all the elements of an offence beyond a reasonable doubt that it can convict.
In relation to the charge of rape, the Prosecution not only failed to prove Dr Wee’s guilt, but Dr Wee had proved his innocence. After acquitting him of rape, the High Court simply substituted the rape charge with a charge of digital penetration and convicted him of the same.
The Court of Appeal acquitted Dr Wee of the charge of digital penetration as it was simply irreconcilable with the Prosecution’s case theory and evidence. Throughout the trial, the complainant categorically denied the possibility that Dr Wee penetrated her vagina using a finger. Further, as Dr Wee was only charged for rape and digital penetration, he had no opportunity to justify his actions. Therefore, as the Prosecution’s evidence was incompatible with the charge of digital penetration, the Court of Appeal acquitted Dr Wee of the same.
The second core tenant or criminal law is the concept that an accused is presumed to be innocent until he is proven guilty. This presumption of innocence also allows the accused to test the truth and veracity of the assertions leveled against him/her by complainants. In other words, the accused person will have the right to cross-examine the complainant and to test the truth of their allegations.
This process can be undeniably traumatic, but the Courts will exercise judiciousness and have not hesitated to take harsh disciplinary action against counsel who cross-examine victims of sexual assault in a manner that is undignified.
This is important as the reverse of the situation would mean that the testimony of complainants will always be presumed to be true. Such an approach is undesirable and incompatible with the fundamentals upon which our criminal justice system is built upon.
Every offender must have the right to a fair trial, it is a sad day for justice when the accused are denied their right to a fair trial. Such a scenario flies in the face of the rule of law.
By that same vein, attacks against defence counsel who help defend offenders to ensure they have a right to a fair trial have no place in a civilised society. Justice is also not served when people are deprived of their life and liberty without due process and a fair trial.
The Correct Decision?
At the heart of this case lie two simple truths. The first is that the testimony of the victim is contradicted by objective medical evidence. The second was that the Prosecution failed to prove its case beyond a reasonable doubt.
The fact that the Prosecution failed to disclose evidence that may have led to a man being wrongfully incarcerated for no less than a decade is something that cannot be understated,
For the past 5 years, Dr Wee has had his medical license suspended following his conviction and has had his reputation dragged through the mud. This decision is one that sets the record straight.