Public Prosecutor v Goh Suet Hong and another

• Jurisdiction: Singapore
• Judge: Hairul Hakkim
• Judgment Date: 02 September 2022
• Neutral Citation: [2022] SGMC 47
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Arrest Case No 900779 of 2020 and Others (1), Magistrate’s Appeal Nos 9131 of 2022 and 9132 of 2022
• Published date: 09 September 2022
• Year: 2022
• Hearing Date: 02 August 2021,03 August 2021,05 July 2022,07 July 2022,18 April 2022,19 April 2022,20 April 2022
• Plaintiff Counsel: David Menon (Attorney-General's Chambers)
• Defendant Counsel: K Kalaithasan (Regent Law LLC)
• Subject Matter: Criminal Law,Offences,Outrage of modesty,Sexual offences,Consent,Implied consent,Criminal Procedure and Sentencing,Statements,Procedural irregularity,Aggravating factors,Offence-specific aggravating factors,Uncharged criminal conduct,Voluntary intoxication
• Citation: [2022] SGMC 47

Magistrate Hairul Hakkim: Introduction

This case concerned the outrage of modesty of a male private hire driver by two male passengers. At the material time, the victim, a 28-year-old married man (“the victim”), was employed as a full-time private hire driver for Grab Holdings Inc. (“Grab”).

In a joint trial, Mr Goh Suet Hong (“Goh”) and Mr Neo Wei Meng (“Neo”) (collectively, “the accused persons”) claimed trial to one charge each under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) for outraging the modesty of the victim (“the Charges”).

Following the conclusion of the joint trial, I found the accused persons to be guilty of their respective Charges. I sentenced Goh to a term of 12 months’ imprisonment and two strokes of the cane, and Neo to a term of 14 months’ imprisonment and three strokes of the cane. Both accused persons have since filed appeals against their conviction and sentence. I now set out my full reasons in the following grounds of decision.

The Charges

The material particulars of the single charge faced by the accused persons respectively were as follows: Goh’s charge: on 12 November 2018, between 1.18am and 3.03am, in a vehicle which was proceeding towards Block 624C Punggol Central, Singapore, Goh did use criminal force on the victim by kissing the victim’s left cheek and left side of the lip, and using his hand to rub the victim’s penis over the pants, knowing it to be likely that Goh would thereby outrage his modesty; and Neo’s charge: on the same date, during the same period and in the same vehicle, Neo did use criminal force on the victim by touching the victim’s nipples under his shirt and using his hands to directly rub the victim’s penis, knowing it to be likely that Neo would thereby outrage his modesty.

The undisputed facts

The agreed facts were helpfully recorded in the Agreed Statement of Facts (“ASOF”), which was admitted by consent during the first day of trial. I reproduce the salient facts from the ASOF and other exhibits below.

The accused persons

Goh is a Malaysian citizen and Singapore permanent resident. At the material time, Goh was employed as a hairdresser and resided at Block 624C, Punggol Central, Singapore 823624 (“Goh’s residence”).

Neo is a male Singaporean. He was employed as a freelance interior designer and resided at Block 159, Hougang Street 11, Singapore 530159 (“Neo’s residence”) at the material time.

Background information on the events surrounding the Charges

On 11 November 2018, at around 10.00pm, the accused persons and another friend met for drinks at E Bar, a bar located along Neil Road, Singapore. After a night of drinking, the accused persons decided to head home together.

Neo made a booking on Grab with two drop-off locations. The first drop-off location was Neo’s residence and the second drop-off location was Goh’s residence. The mode of payment was cash. This booking was assigned to the victim by Grab’s computer system at 1.18am on 12 November 2018.¹

Sometime later, the victim picked the accused persons up along Neil Road. At that point in time, the accused persons sat in the rear passenger seats of the victim’s vehicle. The victim then drove towards the first drop-off location. During the journey to the first drop-off location (“the first leg”), the victim drove along the Central Expressway (“CTE”). Upon reaching the first drop-off location, both accused persons alighted from the vehicle. After Neo left, Goh sat in the front passenger seat (ie, next to the victim). The victim then drove towards the second drop-off location (“the second leg”). Upon reaching the second drop-off location, Goh instructed the victim to enter a multi-storey car park (“the MSCP”). After the victim drove into the MSCP, Goh alighted from the vehicle and told the victim to wait for him while Goh relieved himself. The victim instead drove the vehicle away.

First information report

On 12 November 2018, at around 3.03am, the victim lodged a police report at Punggol Neighbourhood Police Centre (“NPC”), stating that he had been “molested by two unknown male passengers”.² Goh’s Versace handbag, which also contained his mobile phone and other personal belongings, was left in the victim’s vehicle, and was handed over by the victim to the police when he made the police report.

Following the victim’s report, the accused persons were arrested by the police on 14 November 2018.

Other salient undisputed facts

In addition to the ASOF, several other undisputed facts that emerged at trial are worth highlighting at this juncture: Both accused persons admitted that they are homosexuals.³ The accused persons have known each for about 15 years and they frequently met and shared private hire trips together.⁴ The first time the accused persons met the victim was on the same day as the alleged incident, ie, on 12 November 2018. During the second leg of the journey (ie, from Hougang to Punggol), Goh admitted to kissing the victim on his left cheek and left side of the lip and using his hands to rub the victim’s penis over his pants, albeit allegedly under his purported belief that the victim consented to these actions. All of Goh’s personal belongings were handed over by the victim to the police at the Punggol NPC. In other words, Goh confirmed that none of his items were missing.⁵

The Prosecution’s case

The Prosecution formulated Neo’s charge based on his conduct during the first leg of the journey, whilst Goh’s charge was solely based on his conduct during the second leg. With this understanding, the Prosecution outlined its case as follows.⁶

When the accused persons boarded the victim’s vehicle, Goh sat directly behind the victim in the rear passenger seat, while Neo sat in the middle of the rear passenger seat. Shortly after boarding the victim’s car, the accused persons began molesting the victim while he was driving them home. At this point, the accused persons were both drunk.

During the first leg, Goh started by playing with the victim’s nipple over his shirt and thereafter went under his shirt to directly touch the victim’s nipples. The victim told Goh to stop. At the same time, Neo began rubbing the victim’s penis over the victim’s trousers. Soon after, Neo unbuckled the victim’s belt, unzipped the victim’s trousers, and began directly rubbing the victim’s bare penis. The victim told Neo to stop. Instead, Neo licked the victim’s left ear and cheek.

Subsequently, the accused persons conversed in Mandarin. Following this conversation, they switched their actions whereupon Neo played with the victim’s nipples under his shirt while Goh began stroking the victim’s bare penis. The victim did not consent to any of this contact. In fact, he told them to stop on multiple occasions but they ignored him.

After reaching the first drop-off location at Hougang, Neo left the victim’s vehicle and returned home. Goh then moved from the rear passenger seat to the front passenger seat. Soon after the victim started driving towards Punggol, Goh kissed the victim on his left cheek and on his lips. Goh also rubbed the victim’s penis over the victim’s trousers. The victim did not consent to any of this contact.

The Defence’s case Goh’s defence

Goh’s charge only concerned the second leg of the journey for which he admitted to the actus reus at trial. Goh however argued that the victim had consented to his actions.

I observe at the outset that it was not at all clear what type of consent was being relied upon by the Defence. From the questions put to the victim, the only live issue appeared to be that of express consent. However, during submissions, the defence appeared to have evolved to that of “implied consent” and/or “mistaken consent”. However, these other suggestions were never put to the victim. Nevertheless, for completeness, I considered all three types of consent in relation to Goh’s offence in the analysis below.

Neo’s defence

Unlike Goh, Neo’s defence was simply one of bare denial. He claimed that he was asleep for virtually the entire Grab journey during the first leg.

While it was initially suggested by the Defence during trial that it was physically impossible for Neo to molest the victim in the manner alleged from his seat in the victim’s car, this argument was no longer pursued by the Defence in the closing submissions.

The issues

In relation to Goh’s defence of consent, the issues to be determined were as follows: whether the victim had expressly or impliedly consented to Goh’s actions; whether Goh could rely on the defence of “mistaken consent”; and intimately linked to the first two issues, the consideration of whether the victim’s evidence was “unusually convincing”.

For Neo’s charge, given the defence of bare denial, the sole issue here was whether the victim’s testimony was “unusually convincing”.

Before I deal with the case in respect of each accused person separately, given the overlapping issue in their Charges in relation to the victim’s evidence, I first address the general observations that applied equally to both accused persons.

Assessing the victim’s evidence

It is well-established that where a complainant’s evidence is uncorroborated, the complainant’s testimony has to be “unusually convincing” in order to find the accused person to be guilty beyond a reasonable doubt (see, eg, the decisions in Public Prosecutor v GCK [2020] 1 SLR 486 (“GCK”) at [87]; and Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“Liton”) at [37]).

Whether the victim was “unusually convincing”

In GCK (at [88]), the Court of Appeal helpfully observed, quoting from Liton at [39], that a complainant’s testimony would be “unusually convincing” if the testimony:

‘when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable...