Public Prosecutor v Ong Jun Yong

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 22 January 2024
• Neutral Citation: [2024] SGMC 3
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Arrest Case No 902404 of 2020
• Hearing Date: 10 June 2022,19 April 2022,20 April 2022,21 April 2022,13 September 2022,15 September 2022,16 September 2022,19 September 2023,20 September 2023,21 September 2023,20 March 2023,21 March 2023,22 March 2023,22 January 2024
• Citation: [2024] SGMC 3
• Year: 2024
• Plaintiff Counsel: DPP Sruthi Boppana
• Defendant Counsel: Uthayasurian s/o Sidambaram and Divanan s/o Narkunan (Phoenix Law Corporation)
• Subject Matter: Criminal law,Offences,Outrage of modesty,Section 354(1) Penal Code (Cap 224, 2008 Rev Ed),Primary defence,Accused denied having molested the victim,Accused claimed to have been mistakenly identified as the perpetrator,Alternative defence,Accused denied having the necessary intention and knowledge to commit molest,Accused had high blood-alcohol concentration,Accused suffered from alcoholic blackout of the molest,Accused claimed molest committed due to disinhibition from alcohol consumption and possible reactive hypoglycemia
• Published date: 01 January 2021

District Judge Kow Keng Siong: Introduction

I convicted Mr Ong Jun Yong (“Accused”) on the following charge (“Charge”) after a trial:

You, … are charged that you, on the 23 November 2019, at about 2.30 am, at Zouk Singapore, located at 3C River Valley Road, Clarke Quay, #01-05 to #02-06, The Cannery [“Zouk”], Singapore, did use criminal force to [the Victim], knowing it to be likely that you will outrage her modesty, to wit, by slipping your hand into her V-neck dress and touching her left breast over her bra [“the Offending Act”] and you have thereby committed an offence punishable under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) [“Penal Code”].

[italics and text in square brackets added]

These are my reasons for the conviction.

Undisputed facts

I begin by setting out the following undisputed facts in this case. The Accused and the Victim¹ were strangers to each other at the material time. Sometime in the night of 22 November 2019, the Accused and the Victim arrived at Zouk separately and were with their respective group of companions. The Victim’s group was at Table C5 in the clubbing area. The Accused’s group was at Table C4. These two tables were very close to each other. For the locations of these tables, see the seating plan (exhibit D1) at Annex A. The Victim and the Accused had consumed alcohol that night. Sometime on 23 November 2019 before 2.30 am, the Victim and the Accused left their respective tables. At about 2.30 am, the Accused returned to his table and sat down on the sofa. Very soon thereafter, the Victim and some of her companions came to the table and confronted the Accused for having molested the Victim.

Disputed facts Victim’s account

At the trial, the Victim gave an account of what had led to the confrontation. She testified that at about 2.30 am, she was standing at the passageway between her table (Table C5) and another table (Table C12) when someone walked past her. That person (the perpetrator) slipped his hand into her sleeveless V-neck tank top dress, touched her left breast (the Victim was unsure whether the touch was skin-to-skin or on the stick-on bra), and made a light squeeze.²

The Victim was shocked and angry by the Offending Act. She immediately turned and grabbed the perpetrator’s collar. It was at this moment that she saw the perpetrator (the Accused). He covered his face and managed to run to Table C4 and sat on the sofa.

The Victim told her close friend (“G”)³ about what had just happened. They immediately went to the Accused’s table and confronted him. During the confrontation, G slapped the Accused. Some of the Accused’s companions intervened and separated G from the Accused.⁴

Shortly thereafter, Zouk’s bouncers arrived at the scene. They led the Victim, G, and the Accused away from the clubbing area to a waiting room downstairs. Zouk’s bouncers called the Police after the Victim stated that she wanted to pursue the matter.

Accused’s account

The Accused could not recall the events that transpired shortly before and after the confrontation. His last memory of that night at Zouk was of him sitting at the sofa talking and playing drinking games. The Accused also had “flash memory” of him lying on the floor, vomiting and being in handcuffs.

The Accused believed that he had a blackout of the relevant events because of excessive alcohol consumption. The Accused estimated that he had consumed – at Zouk and at an earlier company dinner-and-dance that night – somewhere between (a) eight to 10 glasses of alcohol (examination-in-chief) and (b) 15 glasses of alcohol (cross-examination).⁵ This is not the first time that the Accused had an alcoholic blackout. He had similar blackouts on at least three previous occasions. On these occasions, he had consumed more than 10 glasses of alcohol.⁶

Parties’ case Prosecution’s case

The Prosecution submitted that the Charge had been proven beyond reasonable doubt. First, the Victim had provided compelling evidence implicating the Accused. Second, her evidence had been materially corroborated by other prosecution witnesses.⁷

Defence’s case

The Defence accepted that the Victim had no reason to lie that (a) she had been molested and (b) the Accused was the perpetrator.⁸

Nonetheless, the Defence submitted that the Victim’s evidence should not be given full weight, and that the Accused should be acquitted. Their reasons are as follows. First, the Victim’s evidence of how the molest was committed is unreliable as it riddled with internal and external inconsistencies. Second, the Accused did not commit the molest – the Victim had mistakenly identified him as the perpetrator.⁹ Finally, even if the Accused is found to be the perpetrator, he did not commit the molest intentionally or with the knowledge that he would likely thereby outrage the Victim’s modesty. This is because the Accused was highly intoxicated at the material time and was possibly suffering from hypoglycemia.¹⁰

Key issues for determination

Based on the parties’ case, the key issues before me are as follows. Is the Victim’s evidence regarding the commission of the Offending Act reliable? If the answer is yes, then was the Accused the perpetrator?¹¹ If the answer is yes, then did the Accused commit the molest with the requisite intention and knowledge?¹²

Preliminary observations

Before addressing these issues, I wish to make a few comments.

“Unusually convincing” standard

The Defence submitted that I should apply the “unusually convincing” standard to assess the Victim’s evidence.¹³

I am unable to agree with this submission. The “unusually convincing” standard is applicable only where a court has to determine whether an accused person is guilty of an offence based on the sole uncorroborated evidence of a witness: Public Prosecutor v GCK [2020] 1 SLR 486 (“GCK”) at [87], [98], [99] and [104]. In this case, the Charge does not hinge on the Victim’s evidence alone. There are two other eyewitnesses who had implicated the Accused as the perpetrator of the Offending Act: see [23] – [24] below.

That said, even if the standard is applicable, I find that the Victim’s evidence is unusually convincing. It is not disputed that she is an honest witness: [11] above. Her evidence regarding the nature of the Offending Act has remained consistent despite robust cross-examination. It is inconceivable that she could have been mistaken as to the nature of the act: [33] below.

Intoxication defence

The Defence did not run an intoxication defence based on s 85 of the Penal Code. This is because that defence is available only if an accused person can prove, among others, that his state of intoxication has been caused “without his consent by the malicious or negligent act of another person”: s 85(2). In the present case, the Defence had rightly conceded that the intoxication defence is not available because the Accused had voluntarily consumed alcohol on the night in question.¹⁴

Automatism defence

Finally, the Defence had contended at the start of the trial that the common law defence of non-insane automatism (“automatism defence”) is applicable to the Charge if the Accused was able to prove that he could not control the commission of the Offending Act.

After hearing submissions, I rejected this contention. My reasons – which are set out in Public Prosecutor v Ong Jun Yong [2022] SGMC 37 (“Ong Jun Yong (Preliminary Issues)”) – may be summarised as follows. First, no local court has recognised the automatism defence as being applicable in Singapore. Second, it is wrong in principle to apply this common law defence to the present case because the Charge is based on statute (i.e., the Penal Code). Third, the common law and the Penal Code deals with criminal liability arising from “uncontrolled acts” differently. Finally, the automatism defence has been extensively criticised overseas and recognising it as being available in Singapore would introduce unnecessary complexities into our criminal law.

My decision Offending Act had been committed

I will now address the key issues in the present case – beginning with whether the Victim’s evidence regarding the commission of the Offending Act is reliable.

Victim’s evidence of how she was molested

To answer the above issue, it is useful to recap the key aspects of the Victim’s evidence of the molest. They are as follows – the perpetrator had slipped his hand into her V-neck dress, touched her left breast, and made a light squeeze.

Victim’s evidence has been materially corroborated

I find that the Victim’s evidence of the molest has been materially corroborated by two of her companions that night – J and D. J¹⁵ testified that she had seen the perpetrator (i) approaching the Victim from behind, and (ii) putting his hand into her dress from the neckline into her breasts area. She assumed that the hand had touched the Victim’s breasts because there was “nowhere else [that] the hand could go”.¹⁶ D ¹⁷, who was facing the Victim at the material time, testified that he was shocked when he saw a hand withdrawing quickly from her dress at her chest area. D too assumed that the hand had touched the Victim’s chest. This is because (i) the hand was very near to her chest, (ii) the Victim was very furious at the material time (she had screamed and uttered vulgarities), and (iii) she wanted to grab hold of the perpetrator.¹⁸

There is no reason to doubt the credibility of the evidence of D and J. The Defence accepted that they did not collude with the Victim to give false evidence regarding the molest.¹⁹ At all material times, D and J knew her only as an acquaintance.²⁰

Inconsistencies in the evidence regarding the molest

Even though the Victim’s evidence regarding the commission of the Offending Act has been corroborated by D and J, the Defence submitted that the evidence is reliable because of the following:²¹ Perpetrator’s position at...