Public Prosecutor v Kong Siong Loong (Jiang Xianglong)

• Jurisdiction: Singapore
• Judge: Luke Tan
• Judgment Date: 11 August 2021
• Neutral Citation: [2021] SGMC 53
• Court: Magistrates' Court (Singapore)
• Docket Number: MAC 905629 of 2020, Magistrate’s Appeal No. 9155-2021-01
• Published date: 19 August 2021
• Year: 2021
• Hearing Date: 15 July 2021,23 April 2021,05 July 2021,25 June 2021,21 April 2021,22 April 2021
• Plaintiff Counsel: Ms Loh Hui-Min (until 25 June 2021) and Ms Tan Hsiao Tien
• Defendant Counsel: Mr Sinnadurai S/O T Maniam (Regal Law LLC)
• Subject Matter: Criminal Law,Statutory offences,Outrage of Modesty,Criminal Procedure and Sentencing,Sentencing
• Citation: [2021] SGMC 53

District Judge Luke Tan: Introduction

A 25-year-old female passenger (“the complainant”) was out having dinner and drinks with her friends one night. To return home, she made use of a mobile carpooling application "Ryde", to engage the services of a driver, the accused, Kong Siong Loong @ "Kelvin”. The accused was subsequently alleged to have committed the offence of outrage of modesty against the complainant in the course of driving her home. The charge against the accused reads:

You…..are charged that you, on 09 June 2019, sometime between 3.32am and 4.14am, inside a Honda Shuttle bearing registration no. SML3943S, while travelling towards XXX Rivervale Street, Singapore 540139, Singapore, did use criminal force on [the complainant] (Female, 25 years old), to wit, by touching the right side of her right breast, skin on skin, with the middle and index fingers of your left hand, intending to outrage the modesty of [the complainant], and you have thereby committed an offence punishable under section 354(1) of the Penal Code, Chapter 224.

The accused claimed trial to the charge. Essentially, the Prosecution’s position was that in “…the wee hours of the morning, the accused, a Ryde driver, had touched the right side of his front passenger’s right breast with the index and middle fingers of his left hand. The complainant, who was asleep at the time was awoken by a cold sensation on her bare skin, the source of which was the accused’s fingers resting on her skin.”

In contrast, the Defence’s case was essentially one of bare denial, in that the accused refuted the allegation that he had touched the complainant, and claimed that he had merely used his right hand to brush her hair away when he felt her hair tickling his left arm whilst he was driving. Further, his defence was that even if he did touch her, it was done accidentally, and the contact could not have been at the part of the body that she alleged that he had touched.

After examining the notes of evidence (NE), the exhibits, and the detailed submissions and replies from the Prosecution and the Defence, I was of the view that there was sufficient evidence to prove the charge against the accused beyond a reasonable doubt, and I convicted him accordingly. Thereafter, following sentencing submissions from parties, I imposed a sentence of seven months’ imprisonment on the accused.

The accused, being dissatisfied, has filed an appeal against his conviction and sentence. He is currently on bail pending the hearing of the appeal. I now give my detailed grounds of decision.

Agreed and Undisputed Facts

At the commencement of the trial, parties tendered a “Statement of Agreed Facts” (SOAF). I have set out an outline of the main undisputed facts. On 9 June 2019, at around 3:20am, the complainant booked a ride from the shopping mall "Bugis+" to Blk XXX Rivervale Street, Singapore 540139, using a mobile carpooling application "Ryde". The RydePool driver was the accused, who was the driver of a Honda Shuttle bearing registration no. SML2943S (the "accused's vehicle"). Prior to the accused's arrival at the complainant's pick-up point, the complainant and the accused sent each other messages via RydePool's in-application messenger. A screenshot of their chat (annexed as SOAF-2) showed that the accused sent a message to the complainant at about 3:30 am to indicate “Front seat tks”. The complainant boarded the accused's vehicle at around 3.32am and she alighted from it at around 4.14am. She sat at the front passenger seat throughout the journey.

It was not disputed that when the accused picked the complainant up, there were already two other passengers occupying the back seat of his vehicle. Subsequently, these passengers alighted at a location in Yishun before the accused proceeded to drive to the complainant’s destination. At that stage, the complainant and the accused were alone in the vehicle. As pointed out by the Prosecution, the following events afterwards were also undisputed.

At about 4.14am, the complainant reached her destination and alighted from the accused’s vehicle. Immediately after alighting from the vehicle, she proceeded to do the following: She contacted her then boyfriend, PW4, via Telegram, a messaging application, about what she said had taken place. Their exchange between 4:14am and 5:05am was exhibited as P3. She messaged Ryde via Facebook messenger at 4:29am to “report an incident of outrage of modesty by my driver”. Her full exchange with Ryde was exhibited as P4. She sent a SMS at 4:39am. to a friend, one ‘XYZ’¹ informing that she had been “molested” on her way home just now”. The SMS was exhibited as P1 Annex A, s/n 1. She posted about the incident on Facebook (exhibited as D5), and on Instagram. She sent a SMS at 4:59am to the Singapore Police Force’s 71999 number, to report “an incident of outrage of modesty by my Ryde driver earlier today”. The SMS was exhibited as P1 Annex A, s/n 2.

Later that same day, having received no response from the Police, the complainant lodged another police report at 12:20pm via a telephone call made to 999. This report was exhibited as P5.

Outline of the Prosecution’s Evidence

Before setting out my detailed findings, I will provide an outline of the Prosecution’s evidence adduced through its witnesses and exhibits. I will subsequently do the same for the Defence’s evidence.

The Prosecution called a total of five witnesses. They were the complainant, the complainant’s former boyfriend, a forensic examiner, an analyst with the DNA profiling laboratory at the Health Sciences Authority (HSA), and the investigation officer.

Extraction of the complainant’s phone messages

PW1 Chew Wee Chieh (“Mr Chew”), a forensic examiner working for the Cyber Crime Response Team (CCRT), had examined the complainant’s phone, in relation to the present case, and produced a report P1. He had extracted two case related data messages, which were attached as Annex A of his report. These messages are reproduced below (with particulars redacted).

In essence, the first message was sent from the phone to “XYZ” (at 4:39:56 am ), and it reads “got molested by this motherfucker on my way home just now lol”. Attached to this message was an image showing the accused’s face, a red vehicle, and vehicle details (Honda Shuttle 1.5 G (SML3943S)).

The second message was sent at 4:59:34am to 71999, which is the SMS messaging platform of the Singapore Police Force, where members of the public can send emergency messages to seek for help. The second message reads:

I would like to report an incident of outrage of modesty by my Ryde driver earlier on today when I booked a ride at 0326. It was a shared ride and the back seat was occupied so I had to sit in front. I dozed off in the car and woke up to two of his fingers touching the side of my breast. His name is Kelvin, driving a red Honda Shuttle, SML3943S

DNA profiling of the complainant’s romper

PW2 Dr Anantharaman Ramani (“Dr Ramani”), who is an analyst with the HSA, testified that his work involves the reporting on the examination of biological material and DNA profiling of exhibits submitted by the police.

He had examined a romper submitted to him by the police, and had swabbed the exterior right chest area of the romper for DNA. His findings, set out in a report D1, was that the major contributor of DNA discovered was an “unknown female 1”, and there was also an uninterpretable component found. Dr Ramani testified that “…typically, in an article of clothing, the predominant DNA present would be that of the wearer”², and that the DNA of the “unknown female number 1” could be that of the wearer.

As for the phrase “uninterpretable component”, Dr Ramani testified that the numbers could not be assigned to any individual because they were present at too low a level, and he was not able to interpret these numbers. The uninterpretable component could be from one or more persons, but he said that they did not come from the “unknown female 1”.

Dr Ramani testified that detection of DNA and the transferability of DNA onto an object depends on various factors, and that the absence of DNA does not mean that a person did not touch that object. He further said that he was not given the DNA of the complainant or of the accused for comparison.

Evidence of the complainant

The complainant testified that as stated in the SOAF, she had booked a ride with the accused (‘Kelvin’) through a Ryde booking on 9th June 2019. Prior to this occasion, she was not acquainted with him.

On 8th June 2019, she had woken up at about 11:00 am. Later that day, she met her friends at about 7:00 to 7:30pm for dinner, before going off to a bar at Bugis+. They left when the bar closed at around 3am. The complainant said that they were there to celebrate another friend’s birthday, and that she had 2 pints of beer (“Guinness draught”) the whole night. She further said that in 2019, she drank about 3 litres of beer on a daily basis. ³

To return home, she had booked a ride with RydePool. When the accused, the Ryde driver, arrived in his vehicle at around 3.32am, she opened the front passenger door, said hello to him, and got in. She confirmed that the accused had earlier messaged her to ask that she sit at the front seat (shown in SOAF-2 where the accused had written “Front seat tks”). Aside from herself and the accused, there were also passengers at the back seat.

The complainant said that she sat at the front passenger’s seat, and placed her handbag on her lap. To counsel’s question, she testified that the width of her handbag covered her entire abdomen area. She confirmed that the handbag, shown in D2, had metallic rings on the sides, although when the handbag was placed on her lap, the metallic rings on her handbag did not reach near to her armpit. The complainant knew this because she said that she always rested her arms on her handbag,...