Lawyers clash with AGC over doctor's molest acquittal, explained

Five public statements, three Facebook posts, and still no conclusion.

Nigel Chua | September 09, 2021, 09:59 AM

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Anaesthetist and clinic director Yeo Sow Nam made the news recently when he was acquitted of molestation charges after his alleged victim admitted during the trial that she had lied.

But the story didn’t end there. Yeo’s acquittal was followed by a war of words between the prosecutors from the Attorney-General’s Chambers (AGC) — and Yeo’s lawyers from Eugene Thuraisingam LLP.

We break down what happened, what the two sides are clashing about exactly, and what might happen next.

A missing sense of finality following the acquittal

Generally, in criminal cases, court judgment is taken as final.

Parties are able to appeal the first judge’s decision, but once that is done, or once a certain window of time passes, the judgment is final.

When a judge decides that a crime has been committed and an accused person is “guilty”, it means that the charge has been proven beyond reasonable doubt by the prosecution, or sometimes by the accused person’s own admission.

A verdict of “not guilty” (i.e. an acquittal) does not mean that the court agrees that the accused person did not commit the crime. Instead, it’s simply a decision that the charge has not been proven beyond reasonable doubt. This could be due to a lack of evidence, for example.

But whether guilty or not guilty, the judgment is final in the sense that once a verdict is passed, the case cannot be reopened again in future.

In the case of Yeo Sow Nam, there was no such finality because there was no judgment from the court — in other words, he was not declared "not guilty" by a judge in court.

Instead, the case came to an end before a judge could look at all the facts presented by both parties and come to a decision, as prosecutors from the Attorney-General’s Chambers (AGC) withdrew charges against him, resulting in him being discharged.

And this happened because the prosecutors assessed that they could no longer prove that Yeo had committed a crime, after its key witness’ testimony in court turned out to be inconsistent.

The key witness was the complainant herself, since the alleged molest took place without any eyewitnesses or CCTV footage to prove (or disprove) her claims.

The AGC’s decision to withdraw its case was one of many decisions made by the parties, who are: AGC itself, Yeo, and Yeo’s lawyers.

Since there is no final decision in the form of a court judgment, we can learn more about the case and what really happened by trying to understand these decisions, and some of the possible considerations that the decision-makers had.

1. AGC’s decision to charge in the first place

In deciding to prosecute Yeo, AGC would have first reviewed the case based on whatever facts the police investigations revealed, as well as the witness’ statements about what happened.

And they would have known that the threshold for the complainant’s testimony would be held to the legally-required standard of being "unusually convincing" — this is the standard imposed when a court is called upon to decide solely on the basis of an eyewitness’s uncorroborated testimony, for both sexual and non-sexual offences.

Thus, AGC’s decision to prosecute is significant. It explained that “it was assessed by several Prosecutors that the complainant’s evidence was very convincing, and that the charges against Dr Yeo could be proven,” in its Aug. 31 statement.

Thus, we know that AGC’s position at the time that Yeo was charged in 2020 was that it thought there was a good chance of securing Yeo’s conviction, solely based on the complainant’s testimony.

2. AGC’s decision to apply for Discharge Amounting to an Acquittal

This brings us to AGC’s next significant decision: Applying for a Discharge Amounting to an Acquittal (DATA).

This is a decision that some have criticised as flip-flopping from its initial position — which is an accurate, but unfair way to look at this decision.

After all, AGC only became aware of the inconsistencies in the complainant’s testimony when she was giving evidence in court.

AGC explained on Aug. 31 that the prosecution then updated its early assessment of the case, as it felt that “the inconsistencies, taken as a whole, would likely affect the assessment of the complainant’s overall evidence.”

It therefore decided not to continue prosecuting Yeo, and to apply for a DATA.

3. Defence lawyers’ request for DATA application heard in open court

AGC later revealed that the application for Yeo’s to be discharged was heard in open court at the request of the defence lawyers, although it could have also been dealt with at a pre-trial conference instead.

It revealed this information as support for its point that the defence had “used the court process” to advance allegations that the complainant had lied.

However, it is possible that the defence requested the discharge application to be heard in open court because they wanted their own arguments for a discharge to be put on public record in an open court hearing.

This is because a DATA is not a guaranteed outcome even when the prosecution is no longer prosecuting.

Instead, another possible outcome, according to Section 232(2) of the Criminal Procedure Code, is a Discharge Not Amounting to an Acquittal (DNATA), a less favourable option.

However, the prosecution had already applied for a DATA. And, the defence's submissions on the matter did not go beyond echoing the prosecution’s reasons, and stating that there were no “countervailing factors or arguments” against the granting of an acquittal.

4. Defence lawyers’ decision to apply for the gag order to be lifted, only to withdraw it soon after

On top of making submissions in support of the DATA however, the defence also applied at the same time for the gag order to be lifted. If successful, this would have meant that the identity of the complainant would no longer have to be kept confidential.

However, this application was withdrawn.

AGC took an extremely dim view of this decision by the defence. Under the Criminal Procedure Code, the application to lift the gag order would not succeed.

AGC said that Yeo’s lawyers knew this all along but applied anyway, only to withdraw their application “abruptly” and “suddenly” before the end of the court hearing.

So why did Yeo’s lawyers do this?

The lawyers explained that they only realised that their application was untenable after it was filed and when they were reviewing the prosecution’s submissions on the matter.

They also gave another reason: Going through their application in court (including going over the details and flaws in the complainant’s evidence), instead of withdrawing the application as soon as possible, would reserve their rights for a future application.

What does this mean? The defence lawyers were concerned that if they simply withdrew their application to lift the gag order without reserving their rights, the prosecution might argue in future that the defence should not be allowed to apply for something that they had already applied for, and withdrew.

AGC was not persuaded on this point.

AGC said that the lawyers could have reserved their client’s rights without making “detailed submissions on the complainant’s character and credibility”.

AGC also raised concerns that the defence made the application so that they could make allegations against the complainant “in open court so that they would be picked up by the media and be given wide publicity”.

If this was the case, AGC said, “such conduct would be improper”.

Why is AGC commenting on lawyers’ conduct?

It is significant that AGC commented on the conduct of the defence lawyers, as it is one of the entities that deals with misconduct by lawyers, according to the Legal Profession Act, in Section 85(3).

AGC can refer cases of professional misconduct to the Law Society for further action (and possible disciplinary action).

Therefore, its requests for an explanation, which would determine its “next course of action”, could also perhaps be seen as a thinly veiled threat, or even a warning.

5. Yeo’s decision to issue a public statement

On Aug. 16, Yeo issued a public statement through his lawyers to the media.

It’s not clear how much influence the lawyers had in the crafting of the statement, but they would likely have advised Yeo on the legal aspects at least.

Whether it was Yeo or his lawyers who had greater say in what went into the statement, the media (and the public) would have been able to understand Yeo’s legal position more clearly, beyond just noting that he was acquitted in court and granted a DATA.

The statement expressed Yeo’s gratitude for those who had supported him, but also disappointment at the complainant.

The statement also painted Yeo as the victim in the case, by saying he faced “false and scurrilous allegations”, and mentioning the impact that the case had on his livelihood.

He subsequently reiterated this in a media interview.

Correspondingly, the complainant was portrayed as the wrongdoer. Yeo wrote:

“With her lies, the complainant has jeopardised the good, necessary, and difficult work of ensuring access to justice for real victims of sex crimes.”

Yeo was able to take such a strong position in spite of having faced accusations of sexual misconduct as there was no conclusive evidence of improper conduct.

Because of this, Yeo’s case could be distinguished from other “unproven victim” cases — a type of case that the defence lawyers referenced in their submissions.

Such cases might involve “a ‘real’ victim who has been disappointed by the prosecution’s inability to prove the commission of an actual crime in court,” said the defence lawyers.

An example would be the case of Wee Teong Boo, a doctor who was incidentally also defended by lawyers from Eugene Thuraisingam LLP after being accused of sexual crimes.

In that particular case, Wee admitted in court that he had conducted himself improperly, but was still eventually acquitted.

But even though both doctors received the same legal outcome of being acquitted, Yeo’s case is very different.

Thus, Yeo’s public statement helped to make that point, not just to the court, but to the public.

6. AGC’s decision not to take further action against the complainant

In its Aug. 31 statement, AGC stressed that it “did not reach its decision [to withdraw its case against Yeo] on the basis that the complainant had been untruthful about the alleged outrage of modesty”.

This is significant, as it is one of the issues where AGC disagrees with the defence lawyers: The issue of whether the complainant’s untruthfulness (which she admitted to in court) made a material (i.e. significant or important) difference to the case.

AGC believed that the inconsistencies did not affect “the substance of her allegations”.

This means that, at the time that AGC decided not to prosecute Yeo, it still believed that he had in fact molested the complainant, but also felt that it would not be able to prove its case due to her inconsistent testimony.

On the other hand, the defence lawyers argued (in their submissions dated Aug. 4) that this was “not a case where there is a gap between the commission of a crime and the prosecution’s ability to prove it in court”.

The defence lawyers cited portions of the trial transcripts to try and prove this to the court, and even circulated a redacted version of the transcripts to the media.

Nonetheless, the decision to take action against the complainant for perjury (being untruthful under oath) was to be made by AGC, and AGC decided not to do so.

Meanwhile, the law requires that the complainant has to be charged and convicted before the gag order could be challenged by the defence.

As AGC is not taking further action, the complainant will never be charged and convicted, and thus, there is no legal way for the defence to lift the gag order on the complainant’s identity.

7. AGC’s decision to issue a public statement on Aug. 31

If you’ve made it this far, you’d probably know that some of the information in this article was only revealed to the public in the wake of AGC issuing a controversial public statement on Aug. 31.

The statement called out the defence for making a "misleading and regrettable" statement, and was labelled “unfair” in return.

The next day, AGC explained why it issued a statement:

“AGC decided to make a public statement because of the gravity of what has happened – a court application appears, on its face, to have been brought for an improper purpose, and public allegations have been made against the complainant which are inaccurate.”

If the situation AGC described sounds familiar, it might be because it already happened with a high profile case last year: The case of Parti Liyani, a domestic helper who was acquitted of stealing from her former employers — the family of former Changi Airport Group chairman Liew Mun Leong.

In Parti’s case, the judge found that the family possibly had "improper motives" for lodging a police report against their domestic helper.

Additionally, one of the witnesses for the prosecution, Karl Liew, testified that he owned a black dress which appeared among the allegedly stolen items. He said this was a mistake, but testified on another occasion that he had a habit of cross-dressing.

"Karl’s dishonesty on the stand was plainly evident from his testimony," said the judge in the case, and Liew has since been taken to task by the police for giving false evidence.

And although more evidence emerged after the acquittal to disprove the possibility of “improper motives”, the judgment — along with Karl’s questionable credibility — fuelled strong public sentiment against the Liews.

As covered above, AGC has taken the stance that the complainant was telling the truth about what happened, in spite of the inconsistencies in her testimony. Thus, its public statement on Aug. 31 can be seen as acting in line with that stance.

Perhaps AGC also wanted to publicly state its position, before it was decided that another ministerial statement would be needed to clear the air?

The Aug. 31 statement then prompted a critical article from The Online Citizen, which it slammed in a subsequent statement, calling it “unsubstantiated and inflammatory”.

It also triggered an exchange between the AGC and the defence lawyers, with Thuraisingam taking to Facebook with three posts over two days explaining his and his firm’s position.

We may never know what really happened

Three Facebook posts and five public statements later, the dust around the case has all but settled — AGC has said that it awaits an explanation from Thuraisingam and will follow up based on that.

Meanwhile, netizens continue to try and make sense of the case, with different theories about what really happened between Yeo and the complainant on that fateful day in 2017.

It seems that many are struggling to accept that we may never know what really happened, since there will be no final court judgment on this matter.

AGC’s difficult position

This struggle helps us to understand the difficult position that AGC has to occupy: Trying to defend the complainant against public outcry on one hand, while safeguarding its own reputation on the other.

In some ways, those two objectives are mutually exclusive.

It is 100 per cent reasonable for AGC to withdraw its case after it emerged that the witness’ evidence was not as convincing as prosecutors initially assessed.

But doing so also raised unresolvable questions about the witness’ credibility, which have spurred debate and calls for her to be investigated.

And, given that AGC’s assessment is that the complainant was mostly telling the truth, it is also 100 per cent reasonable for it to decide against prosecuting the complainant.

But to justify its decision, AGC needs to persuade the public of the complainant’s version of the story while being careful not to reveal her identity, in spite of the fact that it had previously decided that it would not be able to persuade an impartial judge with all the evidence.

Will AGC take action against Thuraisingam?

Meanwhile, it remains to be seen if AGC will take action against Thuraisingam for abuse of process.

It is arguably also in a difficult position on this issue, as it could end up losing credibility whether it takes action or not.

Taking action against Thuraisingam for abuse of process could be seen as bullying him, given that the public remains largely unconvinced about the complainant’s side of the story, and could see his actions as an attempt to serve his client’s interests by highlighting the issues with the complainant’s evidence.

On the other hand, not taking action might seem inconsistent with the strong language in its two statements, which labelled his application to lift the gag order as having “no legal basis”, dismissed his explanation as making “no sense”, and suggested that the application could have been made for the sole purpose of getting “wide publicity”.

However, AGC has said that it will decide on its course of action depending on the explanation given by Thuraisingam.

It could perhaps settle the issue quietly by simply issuing him a reminder to make sound court applications in future, as all lawyers should.

Related stories:

via Mount Elizabeth hospital, Eugene Thuraisingam on Facebook, Sylvain Senez on Google Maps

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