Public Prosecutor v Ong Soon Heng

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 16 March 2018
• Neutral Citation: [2018] SGHC 58
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 29 of 2017
• Published date: 12 December 2018
• Year: 2018
• Hearing Date: 05 April 2017,16 May 2017,06 April 2017,30 March 2017,13 November 2017,11 April 2017,12 April 2017,13 September 2017,04 July 2017,31 March 2017,07 April 2017
• Plaintiff Counsel: Sellakumaran Sellamuthoo & Siti Adrianni Marhain (Attorney-General's Chambers)
• Defendant Counsel: Peter Keith Fernando (Leo Fernando) (up to 6 August 2017) Sunil Sudheesan & Diana Ngiam (Quahe Woo & Palmer LLC) (7 August 2017 onwards)
• Subject Matter: Criminal law,Offences,Rape,Abduction,Criminal procedure and sentencing,Sentencing,Sexual offences
• Citation: [2018] SGHC 58

Aedit Abdullah J: Introduction

In the early hours of 24 July 2014, Ong Soon Heng (“the Accused”), the victim (“the Victim”), and several of their acquaintances visited a nightclub, Zouk. The Victim consumed alcoholic beverages and seemed to have lost consciousness as a result of intoxication. At about 4.00am that morning, the Accused drove the Victim to his residence at No 4 Hume Heights (“the Residence”), where the Accused had sexual intercourse with the Victim.

The Accused was charged with one count of rape under s 375(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) and one count of abduction simpliciter under s 362 of the same Act. The Prosecution’s case was that the Victim was unconscious at the material time of the alleged offences due to severe alcohol intoxication. As a result, she lacked the capacity to consent, and did not in fact consent, to being taken to the Residence or to sexual intercourse with the Accused.¹ The Defence denied the Prosecution’s case, and further alleged that the Victim and the Accused had been in an intimate relationship with each other in the period before and around 24 July 2014.

Having considered the evidence, I found that, at the material time of the alleged offences, the Victim could not have and did not in fact consent to sexual intercourse with the Accused. I also found that the Accused had by force compelled the Victim to move from Zouk to the Residence. Accordingly, I convicted the Accused on both charges and sentenced him to a global imprisonment term of 13 years and 6 months, and 12 strokes of the cane. I also granted a compensation order of $76, in default one day of imprisonment.²

Background The parties

The Victim was a 22-year-old undergraduate student at a local university at the material time.³ As of mid-2014, she had been in a relationship with her boyfriend, [W], for a period of two years. In May 2014, the Victim started her internship at Kombi Rocks, which was a company dealing in food and beverage and event management.⁴ The internship was supposed to last for three months until the end of July 2014, but the Victim ended her stint after the incident on 24 July 2014.⁵

The Accused, who was also known as “Osh”, was 37 years old and worked as an understudy bunker surveyor at the time of the alleged offences.⁶

The parties’ relationship

The Accused was a close friend of Lim Tiam Hai (“Lim TH”) and his wife, who were the owners of Kombi Rocks,⁷ and would help out at its premises on occasion.⁸ In the course of her internship, the Victim became acquainted with the Accused,⁹ who helped her at work and advised her on her work relationships. The precise status of the relationship between the two was disputed: the Victim maintained they were just friends, while the Accused maintained that they had a secret romantic relationship.

Events at Zouk

On 23 July 2014, the Victim made plans to visit Zouk with one “Maria” and one Kwok Wing Shan (“Kwok”), who were the Victim’s fellow employees at Kombi Rocks. The Victim was initially reluctant to attend but later decided to join them at Zouk.¹⁰ The Accused and his friends were also there.¹¹

On the night of 23 July 2014, at around 11.00pm, Maria and Kwok went to Zouk together from Kombi Rocks, while the Victim went home first. The Victim arrived later at Zouk at around 1.00am on 24 July 2014. On her arrival, she texted the Accused, who had arrived earlier, to sign her into the club. The Victim then met up with Maria and Kwok at a main table in the club.¹² It was undisputed that the Victim had consumed alcoholic drinks while she was at Zouk, but there was disagreement as to whether she had any at the main table before she went with Kwok to consume an alcoholic cocktail at a wine bar at another part of Zouk’s premises. The Victim’s movement thereafter was also not clear: Kwok testified that they had gone to another part of the club, known as “Phuture”, before returning to the main table, while the Victim said that they had returned to the main table directly.

In any event, the Victim, Kwok and the Accused eventually returned to the main table, where the Victim consumed more alcohol. In the meantime, the Victim texted her boyfriend, [W], to keep him updated on how things were going at Zouk. According to the Victim, the last thing she could remember in the early morning of 24 July 2014 was that she was holding a cup of alcoholic drink and texting [W].¹³

From Zouk to the Residence

CCTV records at Zouk showed that at around 3.48am later that morning, the Victim was unconscious and lying supine on a bench in Zouk. The Accused, Kwok, and others attempted to help her to her feet but failed. The Accused then lifted the Victim and carried her over his shoulder, in what was known as a fireman’s lift, from the premises of Zouk to the carpark where his car was located. At around 4.00am, the Accused drove off with the Victim in the backseat of his car.¹⁴ What happened thereafter, and in particular whether the Victim had the capacity to consent to sexual intercourse with the Accused, was the primary issue of contention at trial.

By the Victim’s account, she had no recollection at all of what had happened between the time she fell unconscious in Zouk, and the time she was awaken by [W] in a very brightly lit room, lying on a mattress on the floor, wearing an unfamiliar t-shirt and pair of boxer shorts. She had no recollection of how she got to the room and was unable to recognise it. She did not consent to any sexual intercourse with the Accused.

The Accused’s version was that when he drove off from Zouk with the Victim lying in the backseat of the car, he realised that he did not know her residential block and unit number. When he asked her about this, she responded by telling him that she wanted to go to his place. Subsequently, at the Residence, the Victim was conscious and consented to having sexual intercourse with him.

Events after the Victim left the Residence

Around 5.00am to 6.00am on 24 July 2014, the Victim’s boyfriend, [W] tracked the Victim’s location to the Residence using a mobile application after she failed to respond to his calls and text messages.¹⁵ [W] arrived at the Residence at around 6.30am. He testified that when he was allowed into the Residence by the Accused’s roommate, Benjamin Lim, he found the Accused and the Victim lying on a mattress under a blanket in one of the bedrooms.¹⁶ After asking the Accused a series of questions and waking the Victim, he left the Residence with the Victim and drove her to her residence.¹⁷

Subsequently, the Victim was brought to KK Women’s and Children’s Hospital (“KKH”). The Victim’s father and brother, as well as [W], returned to the Residence to retrieve the Victim’s mobile phone. There, they questioned the Accused, who denied that anything had happened between him and the Victim. A voice recording of this conversation was made.¹⁸ Later that afternoon, a police report was made and a medical examination conducted of the Victim.

A few days later, the Victim’s father met up again with the Accused. This conversation was also recorded by the Victim’s father.¹⁹ The Accused at this stage admitted that he had sexual intercourse with the Victim but maintained that it was consensual.²⁰

The charges

The Accused claimed trial to the following two charges brought against him:²¹

First Charge	… on 24 July 2014, at about 4.04am, at the driveway of Zouk located at No. 17 Jiak Kim Street, Singapore (“Zouk”), did abduct [the Victim], by using force to compel her to go from Zouk to No 4 Hume Heights, Singapore, and you have thereby committed an offence under section 362, and punishable under section 363A, of the Penal Code (Cap 224, 2008 Rev Ed).
Second Charge	… on 24 July 2014 sometime between 4.04am and 6.30am at No. 4 Hume Heights, Singapore, did commit rape of [the Victim], to wit, by penetrating the vagina of [the Victim] with your penis without her consent, and you have thereby committed an offence under section 375(1)(a), and punishable under section 375(2), of the Penal Code (Cap 224, 2008 Rev Ed).

At the commencement of trial, the Prosecution applied for a gag order under s 8(3) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) in relation to the Victim’s identity, and for the Victim’s evidence to be given in camera under s 153(1) of the Women’s Charter (Cap 353, 2009 Rev Ed). The Defence did not object and, accordingly, I granted both applications.²²

The Prosecution’s case

In relation to the rape charge, it was not disputed that sexual intercourse did in fact occur between the Accused and the Victim between 4.04am and 6.30am on 24 July 2014; the issue was whether the Victim had consented.

The Prosecution’s case was that the Victim had been unconscious as a result of severe alcohol intoxication for the material period between about 4.04am and 6.30am on 24 July 2014, during which the two offences were allegedly committed. The Victim lacked the capacity to consent and did not consent to any sexual intercourse with the Accused at the Residence.²³

As for the abduction charge, the Prosecution submitted that given the intoxicated and unconscious state of the Victim at the material time, she could not have consented to the Accused moving her in his car from Zouk to the Residence. The Accused must therefore had by force compelled her to be so moved within the meaning of s 362 of the PC.²⁴

Further, the Prosecution submitted that the Accused and the Victim were never romantically involved with each other.²⁵ Raising this purported relationship, kept secret from [W], was only an attempt by the Accused to obfuscate the pertinent issues at trial.²⁶

Although the Defence did not in fact raise a defence under s 79 of the PC, the Prosecution argued that the Accused could not have been mistaken in good faith that the Victim had consented to the events constituting...